Citation Nr: 0811569 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-37 843 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for amyotrophic lateral sclerosis (ALS). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD J. T. Sprague, Associate Counsel INTRODUCTION The veteran had active service in the United States Army from March 1943 to November 1945, to include combat duty in the North African and Italian Campaigns during World War II. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The veteran's claim as been advanced on the docket due to his advanced age. 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 contends that he developed ALS as a result of his combat service in the Second World War. Specifically, it is contended that exposure to chemical agents (notably white phosphorus) in service caused him to develop ALS later in his life. The Board notes that the veteran served in combat in North Africa and Italy against Italian and German forces. In this capacity, he was awarded the Combat Infantryman Badge. The application for service connection has been forwarded by the veteran's son, as he has power of attorney over the veteran's affairs. His son has stated that the veteran is currently a patient at Kaiser Permanente Hospital in Walnut Creek, California, where he is being treated for his ALS. According to lay statements, the veteran has a tracheostomy tube emplaced, and is not able to speak due to ALS. The medical records relating to the veteran's treatment records are not in the claims file. These relevant medical records, to include the reported February 2004 diagnosis by R. Sternbach, must be obtained and associated with the claims file. 38 C.F.R. § 3.159(c)(1) (2007). The Board is aware that the service medical records are unavailable, and the National Personnel Records Center (NPRC) has stated that if they were ever in custody of the records, they would have been in an area most heavily damaged by a 1973 fire at the facility. Thus, VA has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Also, the Board notes that the receipt of a combat decoration is sufficient to establish combat service. Thus, the veteran's claim (through his son) regarding his exposure to agents such as white phosphorus while under fire is not disputed. See 38 U.S.C.A. § 1154. The Board also notes that medical literature submitted in support of the claim, while of a generic nature, does suggest there a higher incidence of ALS with exposure to chemical agents, such as phosphorus. In view of the foregoing, after all current records of treatment have been obtained, if a diagnosis of ALS or some other chronic neuromuscular disease is confirmed, the claims file should be sent to a VA neurologist to determine if there is any relationship between the veteran's current disease and his period of combat duty, to include his exposure to chemical agents during that time. 38 U.S.C.A. § 5103 A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Ensure that all notification and development actions required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002) are fully satisfied. 2. After securing the necessary releases, contact the Kaiser Permanente Hospital in Walnut Creek, California and obtain copies of the veteran's alleged treatment at that facility, to include his 2004 diagnosis of ALS. Upon receipt of these records, associate them with the claims folder. 3. If a current diagnosis of ALS or any other neuromuscular disease is confirmed upon the receipt of any medical evidence obtain pursuant to this remand, forward the veteran's claims file to a VA neurologist for the purposes of determining the nature, approximate onset date and/or etiology of such disease. Following a review of the relevant evidence in the claims file, and the relevant medical literature, the examiner is asked to provide an opinion on the following: Is it at least as likely as not (50 percent or greater probability) that any neuromuscular disease that is currently present, to include ALS began during service or is causally linked to any incident of service, to include exposure to chemical agents, including white phosphorus during combat duty. The examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended relationship; less likely weighs against the claim. The examiner is also requested to provide a rationale for any opinion expressed and indicate that the claims file was reviewed. If a conclusion cannot be reached without resort to speculation, he or she should so indicate in the examination report. 4. After the development requested above has been completed to the extent possible, re-adjudicate the veteran's claim. If the benefit sought on appeal is denied, the veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ R. F. WILLIAMS 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).