Citation Nr: 1008967 Decision Date: 03/09/10 Archive Date: 03/17/10 DOCKET NO. 06-37 007 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUES 1. Entitlement to service connection for a disability manifested by chronic fatigue, on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317 (2009). 2. Entitlement to service connection for a disability manifested by memory loss, on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for a psychiatric disability (claimed as nervousness and anxiety disorder), on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317. 4. Entitlement to service connection for a circulatory disability, on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317. 5. Entitlement to service connection for a disability manifested by pain in the back of the head and right shoulder, on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Veteran represented by: Veterans of the Vietnam War, Inc. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active military duty from February 1989 to December 1992. This matter came before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating action of the Department of Veterans Affairs Regional Office (RO) in Hartford, Connecticut. The Veteran testified at a Board hearing in September 2007; the transcript is of record. The 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 is claiming entitlement to service connection for disabilities manifested by chronic fatigue, memory loss, psychiatric impairment, circulatory disorder, and pain in the back of the head and the right shoulder, on a direct basis and as a qualifying chronic disability under 38 C.F.R. § 3.317. 38 C.F.R. § 3.317 lists chronic fatigue syndrome as a qualifying chronic disability for which service connection may be appropriate under that regulation. The Veteran did not serve in the Southwest Asia theatre of operations during the Persian Gulf War and is therefore not a Persian Gulf Veteran; however, he stated that in anticipation of service in Southwest Asia, he received the same immunization shots as soldiers deployed. He also stated that he was exposed to equipment returning from the Persian Gulf War. In support of his claim, he submitted medical articles discussing symptoms and diseases related to immunization shots and exposure to equipment from the Persian Gulf. In January 2008, this matter was remanded to afford the Veteran VA examinations to determine the nature of his symptoms and to determine the nature and etiology of any disabilities manifested by chronic fatigue, memory loss, psychiatric impairment, circulatory disorder, and pain in the back of the head and the right shoulder. A September 2009 print-out from the Providence VA Medical Center (VAMC) reflects examinations pertaining to 'arteries, veins and miscellaneous,' 'brain and spinal cord,' 'chronic fatigue syndrome,' 'joints,' 'mental disorders,' 'neurological disorders, miscellaneous' and 'spine' were requested on August 6, 2009, and are marked "completed." Moreover, on September 17, 2009, it was requested that the claims folder be made available to the VA examiner who conducted the August 2009 spine examination and provide an addendum opinion. The Board notes that there are no VA examinations of record dated in August or September 2009, to include an addendum opinion. Per the December 2009 Supplemental Statement of the Case (SSOC), the 'Adjudicative Actions' section reflects that VA examinations were "conducted" at the Providence VAMC on August 17 and 25, 2009, and September 8, 2009. However, in the body of the SSOC, it states that the Veteran failed to appear for the scheduled VA examinations, and the Veteran's claims continued to be denied. In correspondence received from the Veteran in January 2010, he seemed to indicate that he did attend the scheduled VA examinations. Moreover, he stated that one of his appointments was moved to an earlier date of August 31, 2009, and such consultation would be contained within his VA treatment records. In light of the above, it is not known whether the Veteran underwent VA examinations in August or September 2009 pertaining to his claimed disabilities. In light of the apparent discrepancies, a Remand is required to obtain the VA examination reports from any examinations conducted on August 17, 25, or 31, 2009, or on September 8, 2009, to include any addendum opinion from the examiner who conducted the August 2009 'spine' examination. In the event such examinations were not conducted for any of the claimed disabilities, the RO should give the Veteran another opportunity to attend VA examinations pertaining to the nature and etiology of any disabilities manifested by chronic fatigue, memory loss, psychiatric impairment, circulatory disorder, and pain in the back of the head and the right shoulder. Accordingly, the case is REMANDED for the following actions: 1. Associate with the claims folders any VA examination reports pertaining to his claimed chronic fatigue, memory loss, psychiatric disability, circulatory condition, or a disability manifested by pain in the back of the head and right shoulder, from the Providence VAMC, for any VA examinations conducted on August 17, 25, or 31, 2009, or on September 8, 2009, (or any other date in August or September 2009, or any date thereafter), to include any addendum opinion from a VA examiner who conducted an August 2009 VA spine examination. The RO is reminded that if any examiner conducted an examination during such time period, the examiner must have had access to the claims folder to be reviewed by the examiner in conjunction with the examination. In the event that the claims folder was not made available to the examiner at the time of the examination(s), the claims folder should be made available to the same examiner and an addendum opinion should be prepared pertaining to the nature and etiology of the claimed disabilities. 2. Treatment records from the Providence VAMC should be associated with the claims folder. If any such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 3. In the event that the Veteran did not undergo VA examinations pertaining to his claimed chronic fatigue, memory loss, psychiatric disability, circulatory condition, or a disability manifested by pain in the back of the head and right shoulder, the Veteran should be scheduled for VA examinations with appropriate specialists. The claims folder, to include a copy of this remand, must be made available to and reviewed by the examiner(s) in conjunction with the examinations, and the examination reports must reflect that the claims folder was reviewed. Pertinent service treatment records, post-service medical records, statements from the Veteran and family, and medical articles are identified and labeled in the claims folder. All appropriate testing should be performed. The examiner(s) should respond to the following: a) For any disability manifested by chronic fatigue, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service. b) For any disability manifested by memory loss, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service. c) For any disability manifested by psychiatric impairment, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service. d) For any disability manifested by circulatory problems, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service. e) For any disability manifested by pain in the back of the head, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service. f) For any disability manifested by pain in the right shoulder, the examiner should indicate whether it is at least as likely as not (a 50% or higher degree of probability) that any such disability had its clinical onset during the Veteran's period of service, or is otherwise related to such period of service. A complete rationale for any conclusions made should be included. 4. After completion of the above, the RO should review the expanded record and readjudicate the service connection issues. If any benefit sought is not granted in full, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. The Veteran and his representative have 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. 2009). _________________________________________________ THOMAS J. DANNAHER 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).