Citation Nr: 0007363 Decision Date: 03/20/00 Archive Date: 03/23/00 DOCKET NO. 98-00 816 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for an undiagnosed illness involving the respiratory system. 2. Entitlement to service connection for an undiagnosed illness manifested by joint pain in the ankles, knees, hands and elbows. 3. Entitlement to service connection for hypertension. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs ATTORNEY FOR THE BOARD Christopher P. Kissel, Counsel INTRODUCTION The appellant served on active duty in the United States Army from December 1971 to April 1974, and from November 1990 to May 1991. The latter period of active duty included service in the Southwest Asia theater of operations in support of Operation Desert Storm/Shield from January to April 1991. The record also reflects that the appellant served in the Alabama Army National Guard between 1975 and 1996. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a May 1996 rating decision of the Nashville, Tennessee, Department of Veterans Affairs (VA) Regional Office (RO). The RO in Montgomery, Alabama presently has jurisdiction over this appeal. The Board remanded this case in September 1998 and August 1999 as to the issues listed on the title page. FINDING OF FACT The appellant's claims of service connection for undiagnosed illnesses involving the respiratory system and joint pain in the ankles, knees, hands and elbows, and for hypertension are plausible, but the RO has not obtained sufficient evidence for correct disposition of these claims. CONCLUSION OF LAW The appellant has presented well-grounded claims of service connection for undiagnosed illnesses involving the respiratory system and joint pain in the ankles, knees, hands and elbows, and for hypertension, but VA has not satisfied its duty to assist him in developing facts pertinent to these claims. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION A well-grounded claim for service connection generally requires medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the asserted in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Epps v. Gober, 126 F. 3d 1464, 1468 (Fed. Cir. 1997) (expressly adopting definition of well-grounded claim set forth in Caluza), cert. denied sub nom. Epps v. West, 118 S.Ct. 2348 (1998). Where the determinative issue involves medical etiology or a medical diagnosis, competent medical evidence that a claim is "plausible" or "possible" is generally required for the claim to be well grounded. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). A well-grounded claim for compensation under 38 U.S.C. § 1117(a) and 38 C.F.R. § 3.317 for disability due to undiagnosed illness generally requires the submission of some evidence of: (1) active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War; (2) the manifestation of one or more signs or symptoms of undiagnosed illness; (3) objective indications of chronic disability during the relevant period of service or to a degree of disability of 10 percent or more within the specified presumptive period; and (4) a nexus between the chronic disability and the undiagnosed illness. See VAOPGCPREC 4-99, 64 Fed. Reg. 52375 (1999). With respect to the second and fourth elements, evidence that the illness is "undiagnosed" may consist of evidence that the illness cannot be attributed to any known diagnosis or, at minimum, evidence that the illness has not been attributed to a known diagnosis by physicians providing treatment or examination. Id. The type of evidence necessary to establish a well- grounded claim as to each of those elements may depend upon the nature and circumstances of the particular claim. Id. For purposes of the second and third elements, the manifestation of one or more signs or symptoms of undiagnosed illness or objective indications of chronic disability may be established by lay evidence if the claimed signs or symptoms, or the claimed indications, respectively, are of a type which would ordinarily be susceptible to identification by lay persons. Id. If the claimed signs or symptoms of undiagnosed illness or the claimed indications of chronic disability are of a type which would ordinarily require the exercise of medical expertise for their identification, then medical evidence would be required to establish a well- grounded claim. Id. With respect to the third element, a veteran's own testimony may be considered sufficient evidence of objective indications of chronic disability, for purposes of a well-grounded claim, if the testimony relates to non- medical indicators of disability within the veteran's competence and the indicators are capable of verification from objective sources. Id. Medical evidence would ordinarily be required to satisfy the fourth element, although lay evidence may be sufficient in cases where the nexus between the chronic disability and the undiagnosed illness is capable of lay observation. Id. The evidence submitted in support of a claim must be accepted as true for the purposes of determining whether the claim is well grounded except when the evidentiary assertion is "inherently incredible" or when the fact asserted is beyond the competence of the person making the assertion. King v. Brown, 5 Vet. App. 19, 21 (1993). Service records reflect that the appellant was in the Persian Gulf during the period of open hostilities in 1990-91. With respect to the respiratory and hypertension disorders, service records reflect that these conditions pre-existed his Persian Gulf-era service. Post-service medical records reflect treatment for the appellant's complaints for the disorders claimed, which he has reported by history as having had their onset in service. In view of thereof, the Board finds the appellant's claims of service connection are plausible within the meaning of Caluza and the General Counsel's precedent opinion 4-99, and therefore, well grounded. It is important to emphasize that the well grounded standard is a rather low threshold, see Morton v. West, 12 Vet. App. 477 (1999), and thus, as stated above, evidence is presumed to be credible for such purposes. King v. Brown, 5 Vet. App. at 21. Accordingly, as this claim is found to be well grounded, VA has a duty to assist in the development of facts relating to the claim. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.103 (1999). Further development of the appellate record is in order, as detailed below in the REMAND portion of this decision. ORDER The appellant's claims of service connection for undiagnosed illnesses involving the respiratory system and joint pain in the ankles, knees, hands and elbows, and for hypertension are well grounded, and, to that extent, the appeal is granted. REMAND Unfortunately, and while the Board sincerely regrets the delay, this case must again be remanded because the RO did not ensure full and complete compliance with the Board's remand instructions of August 1999. The Board was required to remand the case in August 1999 because its prior remand instructions of September 1998 had not been accomplished. While the RO properly obtained the requested National Guard service records and had the appellant examined for compensation purposes, the record before the Board reflects that its most important remand instructions of August 1999 were not fully accomplished. Specifically, the Board instructed the RO to obtain medical opinions from appropriate specialists in an effort to determine whether he had disabilities of the joints, respiratory system and cardiovascular system (hypertension), either related to his active duty service in the 1970s or his Persian Gulf War-era service in the 1990s. Clear and precise details concerning the Board's instructions were set forth on pages 5-7 of the August 1999 remand. Separate examinations of the joints, respiratory system and cardiovascular system were conducted in November 1998 (pursuant to the September 1998 remand) and again in November 1999 (ostensibly in an effort to achieve compliance with the August 1999 remand, although only the medical opinions were requested by the Board). Notwithstanding the fact that it was unclear whether any of these examinations were conducted with benefit of review of the appellant's claims file, a serious deficiency in of itself, what is abundantly clear is that the medical opinions requested by the Board in its remands of September 1998 and August 1999 were not obtained. As clearly articulated by the Board in its August 1999 remand, the medical opinions requested are essential to the proper adjudication of this case because the issues to be decided turn not on the degree of disability caused by any relevant disorder(s) found present, but on their etiology and whether there is a relationship between any disorder and an incident or event or the appellant's military service, to include undiagnosed illnesses possibly caused by his Persian Gulf War active duty service. Therefore, in order to expedite the readjudication of the appellant's claims, the Board will again order referral of this case by the RO to appropriate specialists in orthopedic, cardiovascular and pulmonary diseases for the purpose of addressing the etiology of the appellant's disorders relative to his military service. Accordingly, this case is REMANDED to the RO for the following development: 1. The RO must obtain medical opinions from specialists in orthopedic, cardiovascular and pulmonary diseases for the purpose of determining the diagnoses of any currently manifested disorder(s) of the joints, cardiovascular and respiratory systems and the most probable etiology(ies) for same, as is medically possible, based on evidence of record, to include all examination findings and available in/outpatient medical records. The claims folder, to include the reports of the separate VA examinations that were conducted in 1993, 1994, 1998, and 1999, and a copy of this remand must be provided to each specialist in connection with this opinion request. In addition, if the medical history and clinical findings of record confirm that any diagnosed disorder pre-existed the appellant's relevant periods of active duty service (December 1971 - April 1974, and November 1990 - May 1991), each specialist should provide a medical opinion addressing whether any related complaints and treatment provided during his periods of active duty service constituted an aggravation or worsening of his condition (i.e., whether any disease worsened beyond its normal progression during that period of active duty). Moreover, if there are multiple co- existing disorders of the joints, cardiovascular and pulmonary systems, each specialist should comment on the etiology of such disorder(s) relative to any event or incident of the appellant's military service and the treatment/diagnoses provided therein. Regarding the undiagnosed illness element of the appellant's claims for service connection for the joints and pulmonary disorders, the specialists concerned should ascertain whether the appellant's symptoms are part of separate disease entities, or whether there exist a medical relationship between the claimed symptoms and the appellant's service in the Persian Gulf. After each specialist for these disorders has reviewed the claims file and pertinent regulations, he or she should provide a specific opinion as to whether the appellant has objective indications of chronic disability resulting from an undiagnosed illness related to his Persian Gulf War service or whether he has separate and precise illnesses unrelated to his military service in the Persian Gulf. Each specialist should further indicate whether it is at least as likely as not that the appellant's claimed joints and pulmonary disorders are etiologically related to any complaints, treatment or diagnosis reflected in his service medical records. A discussion of the pertinent medical history, including the approximate date of onset of each particular disorder, should be provided. Each specialist should also discuss any other affirmative evidence that would indicate that the appellant is not suffering from an undiagnosed illness. If a specialist determines that additional examinations are necessary to properly respond to the specific opinions requested, such examinations should be promptly scheduled and conducted, and the RO must ensure that any reports generated therefrom are associated with the claims folder. The medical opinions requested in this REMAND instruction should be comprehensive and should include full rationale and a discussion of all medical studies on the subject matter deemed to be pertinent to support the conclusions reached. The reports of each medical opinion should be associated with the claims folder. 2. Subsequently, the RO must review the claims folder and ensure that the aforementioned medical opinion reports are in compliance with the directives of this REMAND. If any report is deficient in any manner or fails to include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. 38 C.F.R. § 4.2 (1999). 3. Upon completion of the above, the RO must readjudicate the appellant's claims with consideration of all evidence of record. The RO is again reminded that these claims are not presently in appellate status on the basis of whether new and material evidence has been submitted to reopen previously denied claims for the disorders in question. This case has been in continuous appellate status since he filed a notice of disagreement to the May 1996 rating decision. Hence, the RO should readjudicate the claims in question on a de novo basis. If any benefit sought on appeal remains denied, the appellant and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The supplemental statement of the case must contain notice of all relevant actions taken on his claim for benefits as ordered by this REMAND, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues addressed herein. See 38 C.F.R. § 19.31 (1999). As stated above, should the case require issuance of a supplemental statement of the case, the RO must ensure that the issues in question are not phrased or adjudicated on the basis of whether new and material evidence has been submitted to reopen a previously and finally denied claim. None of the claims presently on appeal are final for purposes of new and material evidence. Thereafter, the case should be returned to the Board, if in order. 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 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. A. BRYANT Member, Board of Veterans' Appeals