Citation Nr: 1124256 Decision Date: 06/27/11 Archive Date: 07/06/11 DOCKET NO. 07-14 792 ) DATE ) ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for sore muscles, to include as due to an undiagnosed illness. 2. Entitlement to service connection for sore joints, to include as due to an undiagnosed illness. 3. Entitlement to service connection for headaches, to include as due to an undiagnosed illness. 4. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness. 5. Entitlement to service connection for avasuclar necrosis of the hips, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Carl S. Pittman, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Kathy Diener, Associate Counsel INTRODUCTION The Veteran had active service from February 1983 to February 1986, and from February 2003 to August 2003. This matter comes before the Board of Veteran's Appeals (Board) on appeal from August 2005 and February 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran presented testimony before the undersigned Acting Veterans Law Judge (AVLJ) at the RO in February 2011, and before a Decision Review Officer (DRO) in July 2009. Transcripts of those hearings are associated the claims folder. The claims are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Service connection may be established for a Veteran who served in the Southwest Asia Theater of operations during the Persian Gulf War who exhibits objective indications of a qualifying chronic disability that became manifest during active service or to a degree of 10 percent or more not later than December 31, 2011. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A "qualifying chronic disability" includes: (A) an undiagnosed illness, (B) the following medically unexplained chronic multi symptom illnesses: chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome, as well as any other illness that the Secretary of VA determines is a medically unexplained chronic multi- symptom illness; and (C) any diagnosed illness that the Secretary determines, in regulations, warrants a presumption of service connection. 38 U.S.C.A. § 1117(a)(2); 38 C.F.R. § 3.317(a)(2)(i). The Veteran is seeking service connection for sore joints, sore muscles, headaches, memory loss, and avascular necrosis of the hips, which he contends result from his service in Southwest Asia. In a September 2007 statement to VA, he alleged that his conditions are "related to the 'Gulf War Syndrome' due to the vaccination of the Anthrax shot." The Veteran's Form DD Form 214 establishes that he served with Operation Enduring Freedom in Southwest Asia, in an "imminent danger pay area." The Veteran was afforded VA examinations in August 2009, in which it was determined that his claimed conditions are not related to the anthrax vaccine he received prior to his last period of active service. Several United States Court of Appeals for Veterans Claims (Court) and United States Court of Appeals for the Federal Circuit (Federal Circuit) decisions address this type of situation, where an alternate, unadjudicated theory of service connection is presented to the Board. In Roebuck v. Nicholson, 20 Vet. App. 307 (2006), which concerned both direct and presumptive service connection, the Court noted that although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. Id. at 313; see also Schroeder v. West, 212 F.3d 1265, 1269-71 (Fed. Cir. 2000); Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd, 421 F.3d 1346 (Fed. Cir. 2005). The question of whether the Veteran's claimed conditions constitute undiagnosed illnesses as defined in 38 C.F.R. § 3.317 has not been considered. Furthermore, the Veteran has not been notified of the evidence necessary to substantiate a claim under 38 C.F.R. § 3.317. Therefore, a remand is required. Accordingly, the case is REMANDED for the following actions: 1. Send the Veteran a 38 C.F.R. § 3.159(b) letter identifying the evidence and information necessary to substantiate a claim for service connection for a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Thereafter, schedule the Veteran for an appropriate VA medical examination to determine the nature and likely etiology of his claimed conditions. The claims file must be made available to the examiner for review. The examiner should conduct a thorough examination, including any indicated tests, and note any pathology. For each claimed disability for which a known clinical diagnosis (other than non-migraine headaches, fibromyalgia, or chronic fatigue syndrome) is rendered, the examiner is requested to offer an opinion as to whether it is at least as likely as not (e.g., a 50 percent or greater probability) that the diagnosed disorder is etiologically related to the Veteran's period of active service. However, for each disability for which the Veteran has reported pain or other symptoms, but for which a known clinical diagnosis cannot be made (or in cases of non-migraine headaches, fibromyalgia, or chronic fatigue syndrome), the examiner should specify whether there is a chronic disease process existing for six months or more as shown by "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. The examiner is reminded that the symptom history reported by the Veteran is particularly important in making this determination and must be given full consideration. 3. Review the record and complete any further development, if necessary. Thereafter, readjudicate the issues on appeal, ensuring that the Veteran's claims are addressed under 38 C.F.R. § 3.317. If any claim remains denied, the RO should issue a supplemental statement of the case and afford the Veteran and his representative an opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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). This appeal 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. 2010). ______________________________________________ A. C. MACKENZIE Acting 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 the appeal. 38 C.F.R. § 20.1100(b) (2010).