Citation Nr: 0007685 Decision Date: 03/22/00 Archive Date: 03/28/00 DOCKET NO. 98-02 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for memory loss due to undiagnosed illness. 2. Entitlement to service connection for shortness of breath due to undiagnosed illness. 3. Entitlement to service connection for mental disorder to include paranoia and aggression due to undiagnosed illness. 4. Entitlement to service connection for sleep apnea due to undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. L. Mason, Associate Counsel INTRODUCTION The veteran served on active duty from October 1988 to March 1993, to include service in the Persian Gulf. This case comes before the Board of Veterans' Appeals (Board) on appeal from September 1997 and November 1997 rating decisions of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office. In the September 1997 rating decision, the RO denied service connection for bronchitis (claimed as a breathing disorder due to undiagnosed illness), memory loss, and mental disorder to include paranoia and aggression. In the November 1997 rating decision, the RO denied service connection for sleep apnea, shortness of breath (previously denied as bronchitis), and memory loss. The veteran and his representative appeared before a hearing officer at a hearing at the RO in May 1998. REMAND On April 28, 1998, the VA Undersecretary for Health issued Guidelines for Disability Examinations in Gulf War Veterans, IL 10-98-010. This provided a new protocol for examination of Gulf War veterans. Under the new protocol, a physician will review the veteran's symptoms and determine if those symptoms are associated with a diagnosed illness or specifically state if the veteran has a symptom as the result of an undiagnosed illness. The veteran should be afforded the benefits of this new examination protocol. The case is REMANDED to the RO for the following: 1. The RO should schedule the veteran for an examination in accordance with Disability Examinations in Gulf War Veterans, IL 10-98-010, April 28, 1998. 2. The General Counsel, in representing VA before the Court, has noted that the regional office has duties. Pursuant to 38 C.F.R. § 3.655 (1998), when the claimant without good cause fails to report for examination, the claim will be denied. However, the Secretary must show a lack of good cause for failing to report. Further, VA has a duty to fully inform the veteran of the consequences of the failure to undergo the scheduled examination. The regional office must comply with all notification requirements regarding the duty to report and the failure to report for examination. This remand serves as notification of the regulation. 3. The RO shall not return the case to the Board until the above action is fully completed by the RO and the VAMC. Following completion of these actions, the RO should review the claims. In accordance with the current appellate procedures, the case should be returned to the Board for completion of appellate review. The Board intimates no opinion as to the ultimate outcome of this case. 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. CLIFFORD R. OLSON Acting 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).