Citation Nr: 0810898 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 98-10 021A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right eye disorder. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a heart disorder. 4. Entitlement to service connection for a right knee disability. 5. Entitlement to service connection for a psychiatric disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The veteran served on active military duty from December 1985 to November 1994, with service in the Army Reserve from January to June 1978. This matter comes before the Board of Veterans' Appeals (Board) from rating actions of the Department of Veterans Affairs Regional Office (RO) in St. Petersburg, Florida. In March 1995, the RO denied service connection for right eye, back, heart, and right knee disabilities. In July 1997, the RO denied service connection for a psychiatric disorder, claimed as secondary to service-connected disabilities. In August 1999, April 2000, and January 2005, the Board remanded the claims for additional development. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND The veteran asserts that service connection is warranted for a right eye disorder, a back disability, a heart disorder, a right knee disability, and a psychiatric disorder, with the claims for a back disability, a heart disorder, a right knee disability, and a right eye disorder, to include as due to an undiagnosed illness, and the claim for a psychiatric disorder to include as secondary to service-connected disability. In its Remand, dated in January 2005, the Board inter alia directed that the RO attempt to obtain copies of all records of back, heart, right knee, right eye, and psychiatric treatment that the veteran has received at the VA Medical Center in Tampa, Florida, and at the VA Outpatient Clinic in Orlando, Florida, since September 2002. The veteran's representative has requested another remand of this case to the RO. In February 2008, the veteran's representative noted that the claims files do not contain any VA treatment reports dated after September 2002, and argued that a Remand is appropriate. Unfortunately, particularly in light of the prior remands in this case, the Board agrees. The U.S. Court of Appeals for Veterans Claims (Court) has indicated that a remand by the Board confers on the veteran, as a matter of law, the right to compliance with the remand orders. The Court further indicated that it constitutes error on the part of the Board to fail to insure compliance. Stegall v. West, 11 Vet. App. 268 (1998). While the Board recognizes that another remand will further delay resolution of the veteran's appeal, in view of the holding of the Court in Stegall, the Board is of the opinion that it may not proceed with appellate review at this time. Finally, the veteran's representative has argued that although the veteran was afforded VA examinations for his back, heart, right knee, and right eye, that new VA examinations are required so that the examiner may consider any additional VA reports that are obtained. The Court has stated that the VA's statutory duty to assist the veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). On remand, after all relevant records have been obtained, the veteran should be afforded the appropriate examinations. The undersigned apologizes to the veteran for the delay in the full adjudication of this case. Accordingly, the case is REMANDED for the following action: 1. The RO should procure copies of all records of back, heart, right knee, right eye, and psychiatric treatment that the veteran has received at the VA Medical Center in Tampa, Florida, and at the VA Outpatient Clinic in Orlando, Florida since September 2002. All available reports not previously obtained should be associated with the veteran's claims folder. To expedite this claim, the veteran himself may obtain these records and submit them to the RO. 2. The RO should make arrangements with the appropriate VA medical facility for the veteran to be afforded VA examinations to determine the nature, extent, and etiology of any back, chest, right knee, and right eye disabilities. The claims folder must be made available to the examiners in conjunction with the examination. Any testing deemed necessary, including X-rays, should be performed. The examiner should obtain a detailed clinical history from the veteran. All pertinent back, heart, right knee, and right eye pathology, which are found on examination, should be noted in the report of the evaluation. The examiner should express an opinion as to whether it is at least as likely as not (i.e., a probability of 50 percent or greater) that any back, heart, right knee, or right eye disorders that are found on examination are associated with diagnosed disability, and, if so, whether it is at least as likely as not that any such disability was incurred in active military service, and, if not, whether it is at least as likely as not (i.e., a likelihood of 50 percent or greater) that the veteran has an undiagnosed illness primarily manifested by signs or symptoms involving his back, heart, right knee, or right eye, including a medically unexplained chronic multisymptom illness as a consequence of his service in the Persian Gulf War. 3. Following completion of the above actions, to include receipt of any additional evidence, and/or completion of any additional development required in response to information furnished pursuant to the above actions, the RO should review the veteran's claims and determine whether the benefits sought on appeal can now be granted. With regard to the claims for back, heart, right knee, and right eye disabilities, the RO should discuss the appropriate laws and regulations concerning Persian Gulf service. See, e.g., 38 U.S.C.A. §§ 1117, 1118 (West 2002) and 38 C.F.R. § 3.317 (2007). With regard to the claim for a psychiatric disorder, the RO should discuss 38 C.F.R. § 3.310 (2007). If any of the decisions remains adverse to the veteran, he and his representative should be furnished with a Supplemental Statement of the Case, and with the appropriate period of time within which to respond thereto. The case should then be returned to the Board for further review, as warranted. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ JOHN J. CROWLEY 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) (2007).