Citation Nr: 1303841 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 06-03 627A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a disability manifested by musculoskeletal pain due to undiagnosed illness. 2. Entitlement to service connection for a disability manifested by neurological symptoms in the lower extremities due to undiagnosed illness. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran had active service from November 1984 to April 1985 and from April 1986 to March 1994. These matters come before the Board of Veterans' Appeals (BVA or Board) from a rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. In a March 2011 decision, the Board, in pertinent part, denied the above claims; the Veteran then appealed that denial to the United States Court of Veterans Appeals. The parties filed a Joint Motion for Remand (Joint Motion) in June 2012, which was granted by Order of the Court in June 2012, and accordingly, the appeal was remanded to the Board for further consideration. As indicated by the Joint Motion, the claims of entitlement to service connection for irritable bowel syndrome, to include as associated with undiagnosed illness, entitlement to service connection for depression, and entitlement to service connection for pes planus have been raised by the record. These claims have not been adjudicated by the RO, and so are referred to the RO for appropriate action. 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. REMAND The Veteran asserts that service connection is warranted for an undiagnosed disability manifested by musculoskeletal pain and neurological symptoms in the lower extremities. In light of the June 2012 Joint Motion, the Board determines that the case must be remanded for further development and consideration. As discussed in the Joint Remand, at the time of the Board's March 2011 decision, the Veteran's Persian Gulf War Registry examination was not of record. However, while the case was on appeal before the Court, the examination was associated with the claims file. Therefore, there is additional evidence for consideration, and as RO consideration of the evidence has not been waived by the Veteran, the appeal must be remanded. See 38 C.F.R. § 20.1304 (2012). The last VA treatment records in the physical claims folder date from November 2006 and were reviewed and considered in the December 2010 Supplemental Statement of the Case (SSOC). However, a review of the Veteran's Virtual VA claims file shows that records from the Montgomery VAMC from January 2010 to August 2012 and from the Central Texas VAMC dated between May and September 2011 had been obtained. It is not clear, however, whether all available treatment records have been obtained, specifically, any Montgomery records from November 2006 to January 2010, and after August 2012, or those from the Central Texas VAMC from November 2006 to May 2011 or after September 2011. The Board notes that these treatment records should be obtained from these facilities and added to the claims folder. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (records generated by VA facilities that may have an impact on the adjudication of a claim are considered in the constructive possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file). Additionally, the Joint Motion indicates that not all proper steps were followed in developing the Veteran's claims. The procedure for handling Persian Gulf War claims at the RO level is dictated in the VA Adjudication Procedure Manual (Manual), M21-1MR, part IV, subpart ii, chapter1, section E. One of these procedures involves the performance of a General Medical examination. The Veteran was afforded this examination in January 2005. However, the examination report does not reflect that the examiner was provided with the appropriate notice for Persian Gulf War examinations as dictated by the Manual. Therefore, the examination is inadequate, and another examination must be performed to assess the existence and etiology of the Veteran's claimed musculoskeletal and neurological disorders. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the case is REMANDED for the following action: 1. Associate with the claims file the following VA outpatient treatment records: (a) Montgomery VAMC records from November 2006 to January 2010 and from August 2012 to the present, if available; (b) Central Texas VAMC records from November 2006 to May 2011 and from September 2011 to the present, if available. All efforts to obtain these records must be documented for inclusion in the claims folder. All responses, both positive and negative, must be noted and all efforts to obtain these records must continue until it is determined that the records are no longer available or that further efforts to obtain them would be futile. For any records that cannot be located, a formal Memorandum of Unavailability must be prepared for inclusion in the claims folder. 2. Once all additional records have been added to the claims file, schedule the Veteran for a VA examination to assess the nature and etiology of his claimed musculoskeletal pain and neurological symptoms as due to undiagnosed illness. The examination request must comport with the requirements of VA Adjudication Procedure Manual, M21-1MR, part IV, subpart ii, chapter1, section E. The claims file must be provided to the examiner for review, and the examination report must reflect that such review occurred. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner should decide whether it is at least as likely as not that these claimed disorders cannot be attributed to any known clinical diagnosis. The examiner should also consider whether the Veteran has a medically unexplained chronic multisymptom illness, such as chronic fatigue syndrome, and whether that illness is at least as likely as not due to service in view of his pertinent clinical and military service history, which includes a deployment into Southwest Asia during the Persian Gulf War. The term "at least as likely as not" does not mean "within the realm of medical possibility." Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. The examiner should provide a complete rationale for any opinion provided. If the examiner is unable to provide an opinion without resorting to speculation or conjecture, he/she should so state in his/her discussion and explain why. 3. The Veteran must be advised of the importance of reporting to the scheduled VA examinations and of the possible adverse consequences, to include the denial of his claim, of failing, without good cause, to so report. See 38 C.F.R. § 3.655 (2012). A copy of the notification letter sent to the Veteran advising him of the time, date, and location of the scheduled examinations must be included in the claims folder, and must reflect that it was sent to his last known address of record. If he fails to report, the claims folder must indicate whether the notification letter was returned as undeliverable. 4. After completing the above actions, the AOJ should conduct any other development indicated by any response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence and the claim should be readjudicated. If any benefit sought is not resolved to the Veteran's satisfaction, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further 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 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. 2012). _________________________________________________ L. M. BARNARD 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).