Citation Nr: 0003044 Decision Date: 02/07/00 Archive Date: 02/10/00 DOCKET NO. 97-14 594 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for a claimed heart condition including hypertension. 2. Entitlement to service connection for a claimed disability manifested by fatigue with a sleep disorder. 3. Entitlement to service connection for a claimed residual disability manifested by a rectal scar. WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD James L. March, Counsel INTRODUCTION The veteran served on active duty from September 1978 to July 1986 and from January 1991 to March 1991 in support of Operation Desert Shield/Storm. He was the recipient of the Kuwait Liberation Medal and the Southwest Asia Service Medal. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a December 1996 decision of the RO. In July 1998, the Board remanded the case for additional development. FINDINGS OF FACT 1. The veteran's claim of service connection for a claimed disability manifested by fatigue with a sleep disorder is plausible. 2. All relevant evidence necessary for an equitable disposition of the appeal regarding the issue of service connection for a rectal scar has been obtained. 3. The current medical evidence of record indicates that the veteran has a rectal scar which is the likely result of surgery in service. CONCLUSIONS OF LAW 1. The veteran has submitted evidence of a well-grounded claim of service connection for a claimed disability manifested by fatigue with a sleep disorder. 38 U.S.C.A. §§ 1110, 1117, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.301, 3.303, 3.317 (1999). 2. The veteran's disability manifested by a rectal scar is due to disease or injury which was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107, 7104 (West 1991 & Supp. 1999); 38 C.F.R. § 3.303 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Fatigue with a sleep disorder Initially, one who submits a claim for benefits under a law administered by VA has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. 38 U.S.C.A. § 5107(a). Only when that initial burden has been met does the duty of the Secretary to assist such a claimant in developing the facts pertinent to the claim attach. Id. The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) has further defined a well-grounded claim as a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990). It has also held that where a determinative issue involves a medical diagnosis or medical causation, competent medical evidence to the effect that the claim is plausible is required. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In order for the claim of service connection to be well grounded, there must be competent evidence of: (1) a current disability; (2) an in-service injury or disease; and (3) a nexus between the current disability and the in-service injury or disease. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from undiagnosed illness which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2001. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to a physician, and other, non-medical indicators that are capable of independent verification. To fulfill the requirement of chronicity, the illness must have persisted for a period of six months. 38 C.F.R. § 3.317. Signs or symptoms which may be manifestations of undiagnosed illness include, but are not limited to the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). Compensation shall not be paid under this section if: (1) there is affirmative evidence that an undiagnosed illness was not incurred during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) if there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event that occurred between the veteran's most recent departure from active duty in the Southwest Asia theater of operations during the Persian Gulf War and the onset of the illness; or (3) if there is affirmative evidence that the illness is the result of the veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). Here, the veteran has testified that he has had sleeping difficulties and fatigue since his service in the Southwest Asia theater of operations. Furthermore, a November 1997 VA examination report shows diagnoses of fatigue, improved but not resolved, and insomnia, both of which are attributed to undiagnosed illnesses. Thus, the Board finds that the veteran's claim of service connection for a claimed disability manifested by fatigue with a sleep disorder is well grounded. Rectal scar As a preliminary matter, the Board finds that the veteran's claim of service connection for a rectal scar is plausible and capable of substantiation, and thus well grounded within the meaning of 38 U.S.C.A. § 5107(a). When a veteran submits a well-grounded claim, VA must assist him in developing facts pertinent to the claim. 38 U.S.C.A. § 5107(a). The Board is satisfied that all available relevant evidence has been obtained regarding the veteran's claim involving a rectal scar and that no further assistance to the veteran is required to comply with 38 U.S.C.A. § 5107(a). As noted hereinabove, service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As indicated in the Board's July 1998 remand, the RO noted difficulty in obtaining all of the veteran's service medical records, particularly those relating to service during the Persian Gulf War. In October 1996, the National Personnel Records Center (NPRC) reported that all medical records had been submitted to the RO and that it had not been able to identify Riyadh, Saudi Arabia, as a military treatment center, which is where the veteran had claimed he had surgery for removal of a cyst on his rectum. The Board instructed the RO to again attempt to obtain all of the veteran's service medical records. Once again, the NPRC reported that all medical records had been sent to the RO. The veteran testified that, during his service in the Southwest Asia theater of operations in Riyadh, Saudi Arabia, he developed a blocked duct or cyst in the area between his scrotum and rectum which was very uncomfortable. He noted it first on January 15, 1991, and the next day, he started having pain. He stated that, on January 17, he was in excruciating pain and was taken to the emergency room where the area was cut open and drained. In February 1999, a VA examiner reviewed the veteran's reported history of having had a perineal cyst removed in January 1991. It was noted that the veteran complained of occasional itching at the site. The examination revealed a 2.5 centimeter well-healed perineal scar. The examination was otherwise generally unremarkable. The diagnosis was that of "[s]tatus post incision and drainage of infected perineal cyst with no evidence of recurrence or complication there of [sic]." The Board finds credible the veteran's testimony regarding his having had surgery in service. In light of the recent VA examination which revealed a 2.5 centimeter scar, which the veteran complains sometimes itches, the Board finds that the evidence supports the veteran's claim of service connection for a rectal scar. ORDER As the claim of service connection for a claimed disability manifested by fatigue with a sleep disorder is well grounded, the appeal is granted to this extent, subject to further action specified hereinbelow. Service connection for a rectal scar is granted. REMAND In the Board's July 1998 remand, the RO was instructed to arrange for VA examinations to determine the nature and likely etiology of the veteran's claimed heart disability with hypertension and a claimed disability manifested by fatigue with sleep disorder. Inasmuch as the Board has granted service connection for the rectal scar, the remand instructions regarding that issue are no longer of concern. Specifically, the examiners were to provide opinions as to the likelihood that the veteran had a current heart disability or hypertension or an undiagnosed illness manifested by fatigue or sleep disturbance due to disease or injury in service. The VA examiners, however, did not provide such opinions. A remand by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, these issues must be remanded again for compliance with the previous remand instructions. In addition, it was noted in the July 1998 remand that the RO had not addressed the application of 38 C.F.R. § 3.317 in the statement of the case or the supplemental statement of the case and that the veteran had not been given notice of applicable law and regulations and has not been provided with an opportunity to submit evidence and argument related thereto. Although the Board has cited the law and regulation hereinabove, in the event that the RO again denies the issues on appeal, the law and regulation should be provided in a supplemental statement of the case. Finally, it appears clear that the NPRC does not have any additional service medical records concerning the veteran. As the case must be remanded for other reasons, the RO should contact the veteran's Reserve unit in an attempt to secure any additional outstanding medical records. In light of the foregoing, the case is REMANDED to the RO for the following development: 1. The RO should contact the veteran's Reserve unit in an attempt to secure any additional outstanding service medical records, specifically such records from the veteran's period of service in the Southwest Asia theater of operations. 2. The RO should take appropriate steps to contact the veteran in order to obtain the names, addresses, and approximate dates of treatment of all health care providers, VA and private, who have rendered him medical attention for his claimed heart disability with hypertension and claimed undiagnosed illness manifested by fatigue with a sleep disturbance. When the veteran responds and provides any necessary authorizations, the RO should obtain copies of all treatment records from the named health care providers. All records obtained should be associated with the claims folder. 3. The RO should schedule the veteran for special VA examinations to determine the nature and likely etiology of his claimed heart disability with hypertension and a claimed undiagnosed illness manifested by fatigue with sleep. All indicated testing should be accomplished, and the claims folder should be reviewed by the examiner prior to the examination. The examiner should elicit from the veteran and record a full medical history and should report detailed medical findings in connection with the evaluation of the claimed conditions. Based on the review of the case, it is requested that the examiner express an opinion as to the likelihood that the veteran has a current heart disability or hypertension due to disease or injury which was incurred in or aggravated by service or an undiagnosed illness manifested by fatigue or sleep disturbance. The examination reports should reflect review of pertinent material in the claims folder, including the medical records on file, and include the factors on which the opinion is based. 4. Then, the RO should conduct any additional indicated development and readjudicate the issues remaining on appeal. If the benefits sought on appeal are not granted, the veteran should be issued a Supplemental Statement of the Case, which should include all pertinent laws and regulations, and be afforded a reasonable opportunity to reply thereto. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The veteran need take no further action until he is otherwise notified, but he may furnish additional evidence and argument while the case is in remand status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992); Booth v. Brown, 8 Vet. App. 109 (1995). 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. STEPHEN L. WILKINS Member, Board of Veterans' Appeals