Citation Nr: 0619707 Decision Date: 07/06/06 Archive Date: 07/13/06 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 disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Theresa M. Catino, Counsel INTRODUCTION The veteran served on active military 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 (Board) on appeal from an April 1998 rating action of the Department of Veterans Affairs Regional Office (RO) in Montgomery, Alabama. In that decision, the RO, in pertinent part, denied the issues of entitlement to service connection for a disability manifested by memory loss, claimed in the alternative as a disability due to an undiagnosed illness; 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; and entitlement to service connection for a left knee disability. After receiving notification of the April 1998 determination, the veteran perfected a timely appeal with respect to the denial of these service connection claims. In January 2001, May 2003, and June 2004, the Board remanded the issues for further evidentiary development and due process requirements consistent with the Veterans Claims Assistance Act of 2000 (VCAA). Most recently, in March 2006, the Agency of Original Jurisdiction (AOJ) continued to deny these service connection claims. For the reasons set forth below, this appeal, unfortunately, must once again be REMANDED to the AOJ via the Appeals Management Center (AMC) in Washington, D.C., due to the AOJ's failure to comply with all of the directives contained in the Board's last remand decision. VA will notify the veteran if further action is required. REMAND In the June 2004 remand, the Board explained, in relevant part, that if further attempts to locate the veteran's service medical records were negative, his case should be referred to a VA Military Records Specialist (or a designated alternate) to investigate and to request records "outside normal channels" if necessary. The Military Records Specialist was specifically asked to review the June 2004 remand (which included a detailed discussion of past attempts to obtain the veteran's service medical records) and the claims folder carefully and to conduct "whatever follow-up [development] is deemed necessary." In support of these requests, the Board referenced VBA Adjudication Procedure Manual, M21-1 (M21-1), Part III, ch. 4, para. 4.28. Also in the June 2004 remand, the Board indicated, in pertinent part, that if a determination is made that the veteran's service medical records are unavailable and that further efforts to procure those documents would be futile, a memorandum reflecting a formal finding of the unavailability of the service medical records should be drafted. The Board also indicated that the required notice of any such finding should be provided to the veteran in accordance with established procedures. See M21-1, Part III, ch. 4, para. 4.29 & para. 4.29, Addendum O. A review of the claims folder reveals that the AOJ did not fully comply with all of the clearly and explicitly articulated instructions contained in the June 2004 Board remand decision. While a few duplicate service medical records were obtained on remand, it clearly appears that other records continue to remain missing. In that regard, the Office of the Commandant of the Marine Corps specifically replied that "[a]n extensive search has failed to locate complete medical record." No effort was made, however to inform the veteran of the unavailability of his records, or of the possible alternative documents that might serve as a substitute for his service medical records. In addition, no formal finding was made concerning the unavailability of his service medical records. Not only were these actions specifically directed to be undertaken in the prior remand, but this requirement comes directly from the VBA Adjudication Procedure Manual for purposes of complying with the requirements of the Veterans Claims Assistance Act of 2000 (VCAA). Since the Board's last remand in June 2004, the portion of the VBA Adjudication Procedure Manual that addresses the actions to take when service medical records are unavailable has been revised. Effective December 13, 2005, M21-1, Part III, ch. 4 was rescinded by VBA Adjudication Procedure Manual, M21-1MR (M21-1MR), Part III, Subpart iii. Importantly, however, the pertinent substantive provisions of M21-1, Part III, ch. 4 remain essentially unchanged in the M21-1MR. According to the amended version, when service records are unavailable, a claimant should be advised of the requirement that he/she submit any relevant documents in his/her possession. M21-1MR, Part III, Subpart iii, ch. 2., Section I, para. 59(a). See also M21-1MR, Part III, Subpart iii, ch. 2, Section E, para. 27(b) (which contains a partial list of alternative documents that might substitute for service medical records, including, for example, VA military files; statements from service medical personnel; "buddy" certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and/or insurance examination reports); M21-1MR, Part III, Subpart iii, ch. 2, Section I, para. 60(b) (which states that one of the duties of a military records specialist is to serve as the contact point with service departments and other Federal records custodians if it is necessary to return to or request service records outside of normal channels). In addition, the amended version provides that, if the service department determines that it cannot locate the requested service records, a formal finding regarding the unavailability of those documents must be prepared; the veteran must be informed of the evidence that VA was unable to secure, as well as the efforts that were made to secure the evidence; and a decision based on the evidence of record must be made. The responsibility for finally determining that service medical records are unavailable rests with the Veterans Service Center Manager (or his/her designee). M21-1MR, Part III, Subpart iii, ch. 2, Section I, para. 59(b)-(c). Once the formal finding of unavailability has been made, the claimant must be notified either by telephone with an appropriate report of contact made, or by written notice. M21-1MR, Part III, Subpart iii, ch. 2, Section I, para. 59(e). In addition to addressing the subject of obtaining the missing service medical records, the Board's June 2004 remand also, in pertinent part, indicated that the examiner who conducted a VA neurological disorder examination in July 2003 did not provide a requested medical opinion. Consequently, the AOJ was instructed to refer the veteran's claims folder to the examiner who conducted the July 2003 VA neurological examination to have that person provide an opinion concerning the etiology of any symptoms of memory loss shown on evaluation. The Board specifically stated that "[i]f, 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." In December 2005, the AOJ attempted to comply with the Board's request. Specifically, the AOJ sent the veteran's claims folder to the VA Medical Center in Birmingham, Alabama, with instructions for the July 2003 examiner to provide the requested medical opinion. The AOJ noted that, if that examiner is not available, then, and only then, the veteran should be afforded another VA neurological examination by a different examiner who would also need to respond to the requested opinion. In January 2006, a VA examiner reviewed the veteran's claims folder (including the report of the July 2003 VA neurological examination) and provided the requested medical opinion. Significantly, however, this examiner is not the one who had completed the July 2003 evaluation, and no current VA neurological examination was conducted prior to rendering the medical opinion. No explanation was provided as to why an examination was not conducted by the new examiner. The Board sincerely regrets the additional delay that will result from yet another remand of the veteran's appeal. However, the Board simply cannot ignore the AOJ's failure to fully comply with all of the prior remand directives. Consequently, another remand is necessary to ensure that the veteran is accorded full compliance with the statutory duty to assist. 38 U.S.C.A. § 5103A. See also Stegall v. West, 11 Vet. App. 268, 271 (1998) (which finds that, as a matter of law, a remand by the Board confers on the veteran the right to compliance with the remand orders and that a remand by the Board imposes upon the Secretary of Veterans Affairs a concomitant duty to ensure compliance with the terms of the remand). Accordingly, the case is REMANDED for the following actions: 1. Advise the veteran of his opportunity to submit any relevant documents in his possession which may serve as a substitute for his service medical records. M21-1MR, Part III, Subpart iii, ch. 2, Section I, para. 59. A partial list of alternative documents that might substitute for service medical records includes VA military files; statements from service medical personnel; "buddy" certificates or affidavits; state or local accident and police reports; employment physical examination reports; medical evidence from civilian/private hospitals, clinics, and physicians where or by whom a veteran was treated, either during service or shortly after separation; letters written during service; photographs taken during service; pharmacy prescription records; and/or insurance examination reports. M21-1MR, Part III, Subpart iii, ch. 2, Section E, para. 27. 2. Thereafter, carefully review the veteran's claims folder (including the June 2004 remand which provides a detailed discussion of the past attempts to obtain the veteran's service medical records). If it is determined that the veteran's service medical records are unavailable and that further efforts to obtain those documents would be futile, follow the procedures set forth in M21-1MR, Part III, Subpart iii, ch. 2, Section I, para. 59, and draft a memorandum reflecting a formal finding regarding the unavailability of the service medical records. Notice of any such finding must be provided to the veteran in accordance with established procedures. 3. Then, accord the veteran a VA neurological examination. The claims folder must be made available to the examiner in conjunction with the examination. All indicated tests should be conducted. The examiner is specifically requested to answer the following question: Whether the veteran has symptoms of memory loss, and, if so, whether the symptoms represent objective indications of chronic disability resulting from an undiagnosed illness related to his Persian Gulf War service, and/or whether any memory loss shown on examination is etiologically related to his service-connected chronic depression and anxiety. A full rationale should be provided for all opinions expressed. 4. Then re-adjudicate the issues on appeal. If the decisions remain in any way adverse to the veteran, he 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 the applicable law and regulations considered pertinent to the issues on appeal as well as a summary of the evidence of record. Appropriate time should be allowed for response. Thereafter, the case should be returned to the Board, if in order. The veteran has the right to submit additional evidence and argument on the matters that the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ 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 is appealable to the Court. 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) (2005).