Citation Nr: 0505644 Decision Date: 03/01/05 Archive Date: 03/15/05 DOCKET NO. 03-28 981 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for fatigue, including as due to an undiagnosed illness. 2. Entitlement to service connection for headaches, including as due to an undiagnosed illness. 3. Entitlement to service connection for a skin disorder of the feet, including as due to an undiagnosed illness. 4. Entitlement to service connection for a gastrointestinal disability, including as due to an undiagnosed illness. 5. Entitlement to service connection for a respiratory disability, including as due to an undiagnosed illness. 6. Entitlement to service connection for a degenerative bone disease, including as due to an undiagnosed illness. 7. Entitlement to service connection for elevated blood pressure, including as due to an undiagnosed illness. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. A. Saadat INTRODUCTION This case comes to the Board of Veterans' Appeals (Board) from an April 2003 rating decision. The veteran filed a notice of disagreement in April 2003, the RO issued a statement of the case in August 2003, and the veteran perfected his appeal in September 2003. Although the veteran initially indicated disagreement with an April 2003 denial of service connection for weight gain, he withdrew this claim in a June 2003 written statement. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND The veteran's DD Form 214 indicates that he had active military service from November 1990 to May 1991, 6 months and 16 days of active service prior to November 1990, and that he served in the Southwest Asia theater of operations from December 6, 1990, to April 14, 1991. Some of the veteran's service medical records have been associated with the claims folder. However, there are no service medical records dated between November 1990 and March 1991 (a period which includes the veteran's tour in the Southwest Asia theater of operations). In August 2003, the RO contacted the National Personnel Records Center (NPRC) to obtain these records. In October 2003, the NPRC replied that the veteran's health record had not yet been retired to "Code 13" [the NPRC] and that the records should be sought from "Code 41" [Marine Corps Headquarters in Quantico, Virginia]. In October 2003, the RO requested these records from Code 41 and made a follow-up request in December 2003. In a January 2004 email, an individual apparently affiliated with the Marine Corps wrote that an extensive search had failed to locate any medical records pertaining to the veteran. Later in January 2004, the RO sent the veteran advising him of the unsuccessful records search. It appears the proper procedure for obtaining the service medical records of a veteran who was in the Marine Corps Reserves (as outlined in M21-1, Part III, Chapter 4) were not followed. Prior to May 1, 1994, Code 41 received the medical and nonmedical service records for each separating member of the Marine Corps. Since May 1, 1994, however, Code 41 receives only nonmedical service records. Instead, VA's Records Management Center (RMC) receives all medical records directly from military installations at which the Marine Corps veteran is separated. If there is no Reserve obligation or connection, the records are sent to Code 41, where they stay for two years before being forwarded to Code 13 [NPRC]. However, if the veteran is in an Active Reserve unit, service medical records are sent to the unit of assignment. If the veteran has a Reserve obligation but is not in an Active Reserve unit, the records are sent to the RMC for copying before forwarding to Code 42 [the Marine Corps Reserve Support Command in Overland Park, Kansas]. The RMC retains a copy for use in the event the veteran files a claim for disability benefits. At the end of the veteran's Reserve obligation or connection, the records are forwarded to the RMC. In this case, the veteran's DD Form 214 indicates that his Reserve obligation termination date was December 14, 1994. Thus, his service medical records should have been forwarded to the RMC, not Code 41. On remand, the AMC should contact the RMC and request any service medical records it has pertaining to the veteran. See M21-1, Part III, Paragraph 4.01(h). If these service medical records cannot be obtained, the AMC should advise the veteran about alternate sources of evidence (as detailed below). See M21-1, Part III, Paragraph 4.25. In a May 2003 letter, Paul J. Mirone, M.D., wrote that he had treated the veteran since November 2000 for various complaints including fatigue, neck pain, headaches, and elevated blood pressure. Dr. Mirone also opined that it was possible that the veteran's "constellation of symptoms can be related to the Gulf War Syndrome." On remand, the AMC should seek actual treatment records from Dr. Mirone, as well as updated records of treatment of the veteran by other health care professionals. Thereafter, a new VA examination should be scheduled, as detailed below. Accordingly, the Board REMANDS this case for the following: 1. Contact the RMC and request any service medical records it has pertaining to the veteran. Pursue all logical follow-up in this regard, and ensure that the M21-1 procedures for seeking service medical records of veterans who were separated from the Marine Corps Reserves after May 1, 1994, are followed. See M21-1, Part III, Paragraph 4.01(h). 2. If the service medical records in question are not located, develop this case according to applicable criteria pertaining to disposition of cases where service medical records are lost. This includes notifying the veteran that he can submit alternate evidence, including, but not limited to, statements from service medical personnel, "buddy" certificates or affidavits, employment physical examinations, medical evidence from hospitals, clinics and private physicians by which or by whom a veteran may have been treated, especially soon after discharge, letters written during service, photographs taken during service, pharmacy prescription records and insurance examination reports. See M21-1, Part III, Paragraph 4.25. 3. With any needed assistance from the veteran, contact Paul J. Mirone, MD., of West Erie Medical Group and request copies of all treatment records pertaining to the veteran. 4. Ask the veteran to provide a list of the names and addresses of all private and VA doctors and medical care facilities (hospitals, HMOs, VA Medical Centers, etc.) that have treated him since March 2003 (the last time VA treatment records were associated with the claims file). Provide him with release forms and ask that a copy be signed and returned for each health care provider identified, and whose treatment records are not already contained within the claims file. When the veteran responds, obtain records from each health care provider he identifies (except where VA has already made reasonable efforts to obtain the records from a particular provider). If these records cannot be obtained and there is no affirmative evidence that they do not exist, inform the veteran of the records that could not be obtained, including what efforts were made to obtain them. Also inform the veteran that adjudication of his claims will be continued without these records unless he is able to submit them. Allow an appropriate period of time within which to respond. 5. Afford the veteran a new examination. Ensure that the claims folder is made available to the examiner, who should carefully review it before the examination. Such tests as the examiner deems necessary should be performed. Instructions for the examiner: a. Elicit from the veteran details about the onset, frequency, duration, and severity of all complaints relating to his symptoms of headaches, fatigue, skin disorder of the feet, respiratory condition, gastrointestinal condition degenerative bone disease, and elevated blood pressure, and indicate what precipitates and what relieves them. b. Indicate whether there are any objective medical indications that the veteran is suffering from symptoms of headaches, fatigue, skin disorder of the feet, respiratory condition, gastrointestinal condition degenerative bone disease, and elevated blood pressure. c. State whether the veteran's symptoms are attributable to a diagnosed illness, an undiagnosed illness, or a medically unexplained chronic multisymptom illness such as chronic fatigue syndrome, fibromyalgia, and/or irritable bowel syndrome. d. Review the May 2003 letter from Dr. Mirone. If you agree or disagree with the conclusions he made concerning the veteran's symptoms and "Gulf War Syndrome," please state the reasons why. 6. If the examination report is inadequate for any reason or if all questions are not answered specifically and completely, return it to the examining physician for revision. 7. Thereafter, if the benefits sought on appeal remain denied, provide the veteran and his representative with a supplemental statement of the case which references all relevant actions taken on the claims for benefits, summarizes the evidence, and discusses all pertinent legal authority. Allow an appropriate period for response. Thereafter, return the case to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Expeditious handling is required of all claims remanded by the Board or by the United States Court of Appeals for Veterans Claims (CAVC). 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 2002) (Historical and Statutory Notes); see also M21-1, Part IV, paras. 8.43 and 38.02. _________________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the CAVC. 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) (2004).