Citation Nr: 0005155 Decision Date: 02/28/00 Archive Date: 03/07/00 DOCKET NO. 98-09 550 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for numbness of the left hand, including claimed as due to undiagnosed illness. 2. Entitlement to service connection for numbness of the right hand, including claimed as due to undiagnosed illness. 3. Entitlement to service connection for a sleep disorder, including claimed as due to undiagnosed illness. 4. Entitlement to service connection for headaches, including claimed as due to undiagnosed illness. 5. Entitlement to service connection for a heart disorder and hypertension, including claimed as due to undiagnosed illness. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs ATTORNEY FOR THE BOARD R.P. Harris, Counsel INTRODUCTION The appellant had active service from September 1973 to February 1974 and August 1990 to April 1991 (including Southwestern Asia service in support of Operation Desert Shield/Storm from September 1990 to March 1991). Apparently prior and subsequent to those military duty periods, he had unverified periods of duty for training (DUTRA) as an Army National Guard member from June 1973 to June 1995, including active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter came before the Board of Veterans' Appeals (Board) on appeal from an October 1997 rating decision by the Columbia, South Carolina, Regional Office (RO), which, in part, denied service connection for numbness of each hand, a sleep disorder, headaches, a heart disorder, and hypertension, all claimed as due to undiagnosed illness. Consequently, the Board construes the appellate issues as those delineated on the title page of this decision, which will be dealt with in the REMAND section below. REMAND It is unclear from the evidentiary record whether the RO has formally adjudicated whether the service connection claims on appeal are well grounded. In Epps v. Gober, 126 F.3d 1464 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998), the United States Court of Appeals for the Federal Circuit held that, under 38 U.S.C.A. § 5107(a), the VA has a duty to assist only those claimants who have established well grounded claims. More recently, the United States Court of Appeals for Veterans Claims (formerly the United States Court of Veterans Appeals) (Court) issued a decision holding that VA cannot assist a claimant in developing a claim which is not well grounded. Morton v. West, 12 Vet. App. 477 (July 14, 1999), req. for en banc consideration by a judge denied, No. 96-1517 (U.S. Vet. App. July 28, 1999) (per curiam). However, it is premature for the Board to address the question of whether these service connection claims are well grounded, since it appears that certain specific, existing competent evidence that potentially could render said claims well grounded has not been sought by the RO. See 38 U.S.C.A. § 5103(a) (West 1991); Epps; and Robinette v. Brown, 8 Vet. App. 69 (1995), dealing with a pre-duty-to-assist requirement. Initial review of the evidentiary record indicates that appellant's service medical records for the initial period of service (September 1973 to February 1974) are not currently associated with the claims folder, and it is unclear whether the RO has adequately attempted to obtain them. While appellant has not specifically alleged that the claimed disabilities are related to that service period, nevertheless, any additional service medical records might prove relevant in deciding the etiology of these disabilities. Additionally, the INACDUTRA/ACDUTRA medical records and the service medical records for the second period of service (August 1990 to April 1991) currently associated with the claims folder appear incomplete. It is unclear whether the RO has adequately attempted to obtain these records. In particular, although the RO apparently sent written requests for information to the South Carolina Army National Guard in February 1997, it is unclear whether appellant's Army National Guard unit(s) were directly contacted. Apparently, the majority of the National Guard clinical records currently associated with the claims folder were either received in a folder marked as from the "National Guard" in early 1997 or submitted by appellant's representative in August 1997. Although in November 1996, the RO requested the service department to verify appellant's "service" and provide any additional "service" medical records, the request did not specifically refer to the DUTRA periods in question or DUTRA medical records; and a service department medical records folder received in March 1997 from the National Personnel Records Center (NPRC) included only some active service and DUTRA medical records dated in the early 1990's. Although in its March 1997 written response, NPRC noted that no "additional medical records" were on file, it is unclear whether this pertained to active service and/or DUTRA periods in question (particularly since it was noted therein that "available requested records forwarded" were for 1990- 1991). Also, all of the DUTRA periods have not been verified not have they been specified as ACDUTRA or INACDUTRA. While the appellant's contentions primarily concern Operation Desert Shield/Storm active service, 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 or postdated appellant's Operation Desert Shield/Storm active service (again, the evidentiary record indicates that he was an Army National Guard member from June 1973 to June 1995). Additionally, the evidentiary record indicates that appellant has been employed as a laborer by "SRS" (Savannah River__) for 20 years. See November 1996 VA clinical record. It does not appear that the RO has specifically sought appellant's employment medical records, if any, which might shed light on the etiology of the claimed disabilities in issue. Although it appears that additional medical clarification as to the etiology of the claimed disabilities might prove beneficial in resolving the service connection appellate issues, under Morton it would not be appropriate for the Board at this stage of the proceedings to order such development, prior to determining whether the claims are well grounded. Accordingly, the case is REMANDED for the following: 1. The RO should directly contact the Office of the South Carolina Adjutant General, the Army National Guard unit(s) that appellant had been assigned to, and NPRC (or any other appropriate organization), to request written verification of all of appellant's ACDUTRA and INACDUTRA dates, to the extent feasible. If necessary, the appellant's assistance in this undertaking should be solicited. 2. The RO should directly request the Office of the South Carolina Adjutant General, the Army National Guard unit(s) that appellant had been assigned to, and NPRC (or any other appropriate organization), to search for any additional Army National Guard medical records and active service medical records (from September 1973 to February 1974 and August 1990 to April 1991); and any such records should be associated with the claims folder. In the event that records are unavailable, it would be advisable that this be noted in writing in the claims folder. Again, to the extent the appellant's assistance is necessary, his assistance should be requested. 3. The RO should contact and request appellant to provide any additional Army National Guard medical records and active service medical records, that he may have in his possession. Additionally, the RO should request him to provide any other relevant clinical records in his possession (not presently associated with the claims folder), pertaining to the claimed disabilities, as well as the complete names and addresses of any physicians or medical facilities which have provided such treatment. All available, actual clinical records (as distinguished from physicians' statements based upon recollections of previous treatment), to the extent such records are not presently associated with the claims folder, should be obtained from the specified health care providers. The appellant should be requested to sign and submit appropriate consent forms to release any private medical reports to the VA. Any records obtained should be associated with the claims folder. 4. The RO should request appellant to provide any relevant employment medical records that he may have in his possession, as well as the complete name and address of any former and present employer, including, but not limited to, "SRS" (Savannah River__). If the appellant indicates there are some relevant treatment records that an employer might have, the RO should exercise due diligence in attempting to obtain these records and associated with the claims folder. If the appellant indicates that no pertinent records exist, then no additional such action need be taken. Again, the appellant should be requested to sign and submit appropriate consent forms to release any such employment medical records to the VA. 5. The RO should obtain any additional VA medical treatment records with respect to appellant's claimed disabilities; and associate these with the claims folder. The appellant should provides dates and locations of relevant treatment, if any. 6. 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). 7. 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). 8. The RO should review any additional evidence and readjudicate the issues of service connection for numbness of the left hand, numbness of the right hand, a sleep disorder, headaches, a heart disorder, and hypertension, including claimed as due to undiagnosed illness. The RO should initially determine whether these service connection issues are well- grounded, analyzing this question with respect to each such disability. See Rabideau v. Derwinski, 2 Vet. App. 141, 143-144 (1992), and Caluza v. Brown, 7 Vet. App. 498, 506 (1995). See also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). If the RO determines that these service connection claims are not well-grounded, the RO should consider Robinette and Epps. If the RO determines that these service connection claims are well-grounded, then these issues should be adjudicated under appropriate statutory and regulatory provisions, including, but not limited to, direct-incurrence service connection and consideration of the provisions of 38 C.F.R. § 3.317 (1999), regarding certain disabilities due to undiagnosed illnesses for Persian Gulf service veterans. To the extent the benefits sought are not granted, the appellant and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. No action is required of the appellant until he is notified. No opinion as to the ultimate outcome in this case is intimated by the action taken herein. These claims 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. BETTINA S. CALLAWAY 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).