Citation Nr: 0414518 Decision Date: 06/04/04 Archive Date: 06/10/04 DOCKET NO. 98-14 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a disability manifested by memory loss, claimed in the alternative as a disability due to an undiagnosed illness. 2. Entitlement to service connection for a disability manifested by loss of vision and blurred vision, claimed in the alternative as a disability due to an undiagnosed illness. 3. Entitlement to service connection for a left knee disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. H. Eskenazi, Counsel INTRODUCTION The veteran served on active duty from February 1984 to December 1991, which included a period of service in the Southwest Asia theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an April 1998 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied the benefits sought on appeal. In May 2000, the veteran appeared at a hearing before the undersigned Acting Veterans Law Judge. A transcript of that hearing is in the claims file. In July 2002, the Board granted the veteran's motion to advance his appeal on the Board's docket, based on a finding of good cause. 38 U.S.C.A § 7107 (West 1991 & Supp. 2002); 38 C.F.R. § 20.900(c) (2003). This matter was previously before the Board, and remanded in January 2001 and May 2003, for additional development. The Board notes that at the time of the May 2003 remand, one of the issues on appeal was entitlement to service connection for a left knee condition, to include varicose veins. That issue was subsequently granted in part in an October 2003 rating decision, which awarded service connection for varicosities, left lower posterior thigh. As such, the remaining issue on appeal is framed as entitlement to service connection for a left knee disorder. For reasons explained in more detail below, this appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify you if further action is required on your part. REMAND This appeal arises out of the veteran's claims that he currently experiences memory loss and blurred vision, as a direct result of his active military service, including his service in the Southwest Asia theater of operations during the Persian Gulf War. He also claims that he currently has a left knee disorder, which he maintains is related to a left knee problem that he was treated for during basic training. As noted in the Introduction, this matter was previously remanded by the Board in January 2001 and May 2003, for additional development. The Board has carefully reviewed the record since the time of the May 2003 remand, but it does not appear that the remand order was fully complied with. Consequently, another remand is required to ensure that the requested development is completed. See Stegall v. West, 11 Vet. App. 268 (1998) (as a matter of law, a remand by the Board confers on the veteran the right to compliance with the remand orders). The Board regrets any additional delay that will result from another remand of this appeal, but the Board finds that a remand is necessary to ensure that the veteran is afforded full compliance with the statutory duty to assist. See 38 U.S.C.A. § 5103A. There are two primary reasons for the current remand. First, additional efforts are needed to locate the veteran's service medical records (SMRs). Despite documented attempts to locate such records, the Board is not satisfied that all efforts to locate the records were exhausted, and more significantly, it is not clear from the record why the veteran's SMRs cannot be located. Second, clarification is needed from the examiner who conducted the July 2003 VA neurological examination, as he did not fully answer the question posed in the May 2003 Board remand. The Veterans Claims Assistance Act of 2000 (VCAA) requires that whenever VA attempts to obtain records from a Federal department or agency, the efforts to obtain those records should continue until the records are obtained, unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); see 38 C.F.R. § 3.159(c)(2) ("VA will make as many requests as are necessary to obtain relevant records from a Federal department or agency.") In the present case, despite past attempts by the RO and the Board to obtain copies of the veteran's SMRs, these records still have not been located and associated with the veteran's claims file. More importantly, the Board cannot be "reasonably certain," based on documentation in the claims file, "that such records do not exist, or that further efforts to obtain those records would be futile." Thus, additional efforts are needed to locate the veteran's SMRs, as outlined below. The May 2003 Board remand directed the RO to attempt to locate the appellant's missing SMRs by contacting the Commandant, Headquarters, United States Marine Corps. The Board specifically requested that a negative response be provided if no service medical records could be found. In June 2003, the RO mailed a letter to the Commandant, Headquarters, United States Marine Corps., as requested by the Board. The letter included a statement that if no SMRs could be found, to please send a written response stating that there were no records located at that facility. It does not appear that any response was received from that facility. As there is a possibility that this facility may have information pertaining to the location of the veteran's SMRs, a response to the June 2003 letter is necessary. See Stegall, supra. The May 2003 Board remand also directed the RO to obtain clarification from the National Personnel Records Center (NPRC) as to what was meant by a statement on a "3101 Print" dated October 16, 2002, which states "No additional meds at Code 13." The RO sought clarification on this point in a June 2003 Request for Information (also known as a "3101 Print"). The RO made the following request: Please search for copies of any service medical records. If no records located please send a response showing from whom the response received and and [sic] what is meant by the response 'no additional meds at code 13.' The response received to this request is coded as "99" and states "enlistment and separation physicals copies from microfiche. There are no other meds on file at Code 13." This "response" is non-responsive. It does not explain what is meant by "there are no other meds on file at Code 13." Rather, the "response" simply reiterates that the enlistment and separation physicals are copies from microfiche (a point well-established at this point in the appeal), and repeats the statement about the Code 13. Thus, the Board is again requesting that an explanation be provided as to what is meant by the above statement. See Stegall, supra. Ever since the inception of this appeal in January 1997, when the veteran filed his initial claim for VA compensation, there have been unsuccessful attempts by the veteran, the RO, and the Board to obtain copies of the veteran's SMRs. Moreover, no one has provided a reasonable explanation as to why the records could not be obtained. This is not in compliance with 38 U.S.C.A. § 5103A(b)(3) and 38 C.F.R. § 3.159(c)(2). Moreover, it does not appear that the procedures outlined in the Veterans Benefits Administration (VBA) Adjudication Procedure Manual, M21-1, Part III, Chapter 4, have been fully complied with. The Board has carefully reviewed the claims file, and in addition to the foregoing, a summary of the attempts to locate the veteran's SMRs is as follows. In April 1997, the RO received "microfiche meds" from the NPRC. Essentially, those records consist of a few lab reports. In January 1998, the RO made another request for the veteran's SMRs (this request was addressed to code 13). In February 1998, a response was received from the NPRC indicating that in April 1997, all available medical records were sent to VA at 474 South Court Street, Montgomery, Alabama (microfiche meds). In June 1998, the veteran requested a copy of his SMRs from the RO. In September 1999, a request was made to address code 13. In November 1999, a response was received indicating that "standard source document(s) are not available ... other documents are <>." In February 2000, the RO received some of the veteran's service personnel records. In April 2000, the veteran again requested his SMRs from the RO. He stated that he had contacted NPRC for the records, but that he was told that they were sent to the RO. In August 2002, the RO sent another request to the NPRC for the veteran's SMRs. In September 2002, a response was received that states "meds sent to VA, 474 South Court St., Montgomery, AL on 04/02/1997 ... (microfiche meds) ... No additional meds at code 13." In a December 2002 Board development memorandum, a request was made to clarify what was meant by the foregoing response. In December 2002, a response from the Montgomery VA medical center indicating that there were no records for the veteran at that station. In December 2002, the RO made a request to "Address Code 42" for the veteran's SMRs. In January 2003, a response was received (coded as 61) indicating that "DPRIS is negative for images for this veteran." In December 2002, a negative response was received from the Records Management Center. In December 2002, the Board contacted the RO to search for missing or misfiled medical records. In February 2003, a response was received indicating that they had no medical records for the veteran. In August 2003, the veteran sent another request to the RO for his service medical records, and inquired as to why they were not all available. Based on the foregoing, it is clear that attempts have been made to locate the veteran's SMRs. However, the Board is not convinced, based on the documentation contained in the claims file, that it is reasonably certain that the veteran's SMRs do not exist or that further efforts to obtain those records would be futile. 38 U.S.C.A. § 5103A(b)(3); 38 C.F.R. § 3.159(c)(2). It is not at all clear from the record what the responses mean that contain numerical codes - the responses are confusing, at best. Moreover, based on the number of negative attempts to obtain the veteran's SMRs, this matter should be referred to a VA Military Records Specialist (or designated alternate) to investigate and to request records "outside normal channels" if necessary. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.28. If it is determined that the SMRs are unavailable, and that further efforts to obtain the records would be futile, the procedures in VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, should be followed, and a memorandum should be drafted that contains a formal finding on the unavailability of service records. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, Addendum O. The required notice of any such finding should be provided to the veteran in accordance with established procedures. Finally, the May 2003 BVA remand requested that the veteran undergo a VA neurological examination. The remand included a specific question for the examiner to answer. In July 2003, the veteran underwent a VA neurological examination, in response to the Board's request. The examiner indicated that he had reviewed the veteran's claims file, and carefully reviewed paragraph five of the remand. However, the examiner's concluding remarks did not answer the question posed by the Board. As such, the claims file should be forwarded back to the examiner who conducted the July 2003 VA neurological examination with a request for clarification. Specifically, the examiner should be asked to provide a detailed response to the question presented in the May 2003 BVA remand. In light of the foregoing, this matter is REMANDED to the RO via the AMC, for the following: 1. Please process this case expeditiously, as a motion to advance this case on the Board's docket was granted in July 2002. 2. Send a second request for the veteran's service medical records to the Commandant, Headquarters, United States Marine Corps, ATTN: MMSB-10, 2008 Elliot Road, Quantico, VA 22134-5030. See VBA Adjudication Procedure Manual M21-1, Part III, ch. 4, para. 4.01(f)(2). Please request that a negative response be provided, if no service medical records are found at the facility. If no response is received, follow up the request with another letter. Fully and completely document all attempts to receive a response from this facility in the claims file. 3. Provide an explanation for the numerical "codes" contained on all the "3101 Print" forms in the claims file, which are titled "Request for Information." Specifically, provide an explanation for the following: (1) address codes; (2) request codes; (3) response codes. It needs to be plainly and clearly documented in the claims file what each code means. 4. Related to the request in paragraph 3, above, provide an explanation as to what is meant by the October 16, 2002, "3101 Print" response that states "No additional meds at Code 13." As explained in the body of this remand above, this matter was requested by the May 2003 Board remand, but the response was not satisfactory. 5. If further attempts to locate the veteran's service medical records are negative, refer this matter to a VA Military Records Specialist (or designated alternate), to investigate and to request records "outside normal channels" if necessary. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.28. The Military Records Specialist is specifically requested to review this remand, which includes a detailed outline of the past attempts to obtain the veteran's SMRs, and to carefully review the veteran's claims file, and to conduct whatever follow-up is deemed necessary, as outlined in VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.28. If it is determined that the service medical records are unavailable, and that further efforts to obtain the records would be futile, the procedures in VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, should be followed, and a memorandum should be drafted that is a formal finding on the unavailability of service records. See VBA Adjudication Procedure Manual, M21-1, Part III, ch. 4, para. 4.29, Addendum O. The required notice of any such finding should be provided to the veteran in accordance with established procedures. 6. The veteran's claims folder should be referred back to the examiner who conducted the July 2003 VA examination for neurological disorders, for clarification. Specifically, the examiner is requested to review the examination report, and answer the following question: Whether the appellant has symptoms of memory loss, and, if so, whether the symptoms represent objective indications of chronic disability resulting from an undiagnosed illness related to the appellant's Persian Gulf War service, and/or whether the memory loss is etiologically related to the service- connected psychiatric disability. If, and only if, that same examiner is unavailable, the veteran should be scheduled for another VA neurological examination, and the examiner should be requested to carefully review the veteran's claims file in conjunction with the examination, and to carefully answer the foregoing question. 7. Following completion of the above development, the appellant's claims for service connection, which are the subject of this remand, should be readjudicated. If any benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal. The veteran and his representative should be offered an appropriate opportunity to respond. 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 Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). _________________________________________________ RICHARD C. THRASHER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2003).