Citation Nr: 1303241 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 09-35 465 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for chronic pain, to include as due to an undiagnosed illness. 2. Entitlement to service connection for chronic fatigue, to include as due to an undiagnosed illness. 3. Entitlement to service connection for muscle weakness, to include as due to an undiagnosed illness. 4. Entitlement to service connection for a skin condition, to include as due to an undiagnosed illness. 5. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for gastrointestinal disorder, to include as due to an undiagnosed illness, and, if so, whether service connection is warranted. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Laura E. Collins, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1987 to December 1991. His decorations include the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in March 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required. REMAND With respect to the application to reopen the claim for service connection for a gastrointestinal disorder, additional efforts are needed to comply with VA's duty to notify under the VCAA, as the November 2008 notice letter is deficient in this regard. Specifically, the Veteran must be provided with adequate notice under the guidance of the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), which addresses the requirements for new and material evidence. Such notice must include the basis for the previous denial in the July 2003 rating decision, and the element(s) required to establish service connection that was found insufficient in that decision. See Id. With the exception of dental records, service treatment records from the Veteran's period of active duty service are not associated with the file. The RO has requested these records from the National Personnel Records Center (NPRC) multiple times since 1996, and a Formal Finding of Unavailability was issued in February 2009. However, there appears to have been no attempt to obtain the Veteran's service records from the Records Management Center (RMC). There also appears to have been no attempt to obtain the Veteran's service records from his National Guard component. The Veteran's separation report, GB Form 22, shows he served in the Army National Guard of Kentucky from December 1991 to September 1994. His DD Form 214 lists his National Guard unit as Det 1 HHC 1st BN 123rd AR BDE (WPOFT1) in Hickman, Kentucky. This designation is confirmed by the GB Form 22. Therefore, on remand, the RO must attempt to obtain the Veteran's service records from all appropriate entities, to include the RMC and the Veteran's National Guard/Reserve component. VA records reflect complaints of and treatment for chronic pain, sleeping problems, and muscle weakness during the appeal period and the Veteran has stated that these symptoms have continued since his discharge from service. He has not been afforded a VA examination to determine the nature and etiology of these symptoms. VA's duty to assist includes a duty to provide a medical examination or to obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The regulations at 38 C.F.R. § 3.159(c)(4) present a low threshold for the requirement that evidence indicate that the claimed disability may be associated with in-service injuries for the purposes of a VA examination. Significantly, a copy of a prior rating decision issued in December 1997 indicates that the Veteran's personnel records were available at the time of that rating decision, and more importantly, that he had service in Southwest Asia from October 1, 1990 to April 9, 1991. The Board finds it appropriate to remand the claim to afford the Veteran an opportunity to undergo a VA examination to assess the current nature and etiology of his claimed conditions, particularly in light of the place, type and circumstances of his service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, in an April 2009 lay statement, the Veteran reported that he received treatment for his claimed conditions at the VA Medical Centers (VAMCs) in Kansas City, Wichita, Fayetteville, and Arkansas, and at the Mt. Vernon, Missouri Outpatient Clinic. The most recent VA treatment records in the claims file are current as of July 2009, and more recent records are not available via Virtual VA. He may have received additional treatment in the intervening time. Therefore, on remand, relevant VA treatment records from these facilities since July 2009 should be obtained for consideration in his appeal. See 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran a corrective letter under 38 U.S.C.A. § 5103(a) that (1) notifies him of the basis of his previously denied claim for service connection for his gastrointestinal disorder; and (2) notifies him of what specific evidence would be required to substantiate the element or elements needed for service connection that were found insufficient in the prior denial. 2. Contact the RMC, the Veteran's National Guard component, and any other appropriate resources and request that they provide any service treatment and/or service personnel records in their possession pertaining to the Veteran's active duty and National Guard service. All attempts to secure these records, and any response received, must be documented. If advised that the Veteran's records are unavailable, issue a Formal Finding of Unavailability and notify the Veteran of that fact and of the forms of evidence he may submit in lieu of his missing service treatment records. 3. Contact the Veteran and ask him to identify all sources of VA and non-VA treatment for his claimed conditions. He should be requested to provide, or authorize VA to obtain, any outstanding records. Also, obtain relevant records from the VAMCs in Kansas City, Wichita, Fayetteville, and the Mt. Vernon Outpatient Clinic dated from July 2009 to the present. All efforts made should be documented in the claims file. 4. After associating any outstanding records with the claims folder, schedule the Veteran for a VA examination to determine the nature and etiology of his claimed muscle weakness, chronic pain, chronic fatigue, and skin condition. The claims folder must be made available and reviewed by the examiner. All indicated studies should be performed, and all findings should be reported in detail. The examiner must state whether it is at least as likely as not that the Veteran's muscle weakness, chronic pain, chronic fatigue, and skin symptoms can be attributed to known clinical diagnoses. In doing so, each symptom and its corresponding diagnosis should be made clear. Any symptom with no known corresponding diagnosis also should be made clear. The examiner must also whether it is at least as likely as not that any clinical diagnoses attributed to the muscle weakness, chronic pain, chronic fatigue, and skin condition identified on examination had onset during active service; or, is causally related to the Veteran's service; or, was manifested within one year of discharge from service. The examiner is advised that the Veteran is competent to report a continuity of symptomatology since service and thus, the examiner must acknowledge and discuss such report as it relates to his various symptoms. A complete rationale must be provided for any opinion expressed. If the examiner determines that a medically sound opinion cannot be reached, please explain why and state whether there is additional evidence that could enable an opinion to be provided or whether the inability to provide the opinion is based on the limits of medical knowledge. 5. Then, readjudicate the Veteran's claims. If action remains adverse, he and his representative should be provided with a supplemental statement of the case and allowed an appropriate opportunity to respond. Thereafter, the case should be returned to the Board. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the U.S. 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. 2012). _________________________________________________ D. JOHNSON 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 your appeal. 38 C.F.R. § 20.1100(b) (2012).