Citation Nr: 1317463 Decision Date: 05/29/13 Archive Date: 06/06/13 DOCKET NO. 09-18 622 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for congestive heart failure and chest pain, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for cirrhosis of the liver, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 3. Entitlement to service connection for an undiagnosed illness, claimed as involving irritable bowel syndrome, fatigue, joint pain, headaches, and respiratory problems, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran, his sister, and his caretaker ATTORNEY FOR THE BOARD N. Kroes, Counsel INTRODUCTION The Veteran served on active duty from January 1981 to January 1985 and from September 1987 to January 1991. His decorations include the Southwest Asia Service Medal. This case was remanded by the Board in April 2011 so that the Veteran could be scheduled for a hearing before a member of the Board. In November 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Veteran submitted additional evidence at the hearing with a waiver of initial agency of original jurisdiction (AOJ) consideration. See 38 C.F.R. § 20.1304 (2012). The case was held open for 60 days and the Veteran submitted additional evidence. The Board notes that the Veteran was previously represented by the New York State Division of Veterans' Affairs, and that organization aided him at his November 2011 hearing. However, the most recent VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative), received in February 2011, grants power of attorney in this case to the Texas Veterans Commission (TVC). In an April 2013 letter, the Board requested that the Veteran clarify who he wished to represent him. The letter indicated that if there was no response from the Veteran, the Board would consider TVC as the Veteran's representative. No response was received after the April 2013 letter, which was not returned as undeliverable. As such, TVC is recognized as the Veteran's current representative. If the Veteran wishes to change representatives he should submit another VA Form 21-22. The appeal is REMANDED to the AOJ via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required. REMAND While further delay is regrettable, the Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). Initially, it is noted that the Board finds that the Veteran is a Persian Gulf veteran as defined in 38 C.F.R. § 3.317 (2012) and that section, dealing with compensation for certain disabilities due to undiagnosed illnesses, is for consideration in this case. To qualify as a Persian Gulf veteran, a veteran must have served on active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(e)(1). The Southwest Asia theater of operations refers to Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabia Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(e)(2). The Veteran has been awarded the Southwest Asia Service Medal. To be eligible for the Southwest Asia Service Medal, among other things, a service member must have served in the Persian Gulf, Red Sea, Gulf of Oman, Gulf of Aden, a certain portion of the Arabian Sea, Iraq, Kuwait, Saudi Arabia, Oman, Bahrain, Qatar, or the United Arab Emirates between August 2, 1990 and November 30, 1995. Service in any of these areas would qualify the Veteran as a Persian Gulf veteran under 38 C.F.R. § 3.317. See 38 C.F.R. § 3.317; see also DEP'T OF DEF., NO. 1348.33, VOL. 2, MANUAL OF MILITARY DECORATIONS AND AWARDS: DOD SERVICE AWARDS - CAMPAIGN, EXPEDITIONARY, AND SERVICE MEDALS 64-65 (Nov. 23, 2010), available at http://www.dtic.mil/whs/directives/corres/pdf/134833vol2.pdf. The Board recognizes that the Southwest Asia Service Medal can also be awarded for service in Israel, Egypt, Turkey, Syria, and Jordan; however, such service would have to be between January 17, 1991 and November 30, 1995 which is after the Veteran last separated from service. Given the above, 38 C.F.R. § 3.317 is for consideration in this case. Under 38 C.F.R. § 3.317, a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability may be service connected, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2016, and by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. A "qualifying chronic disability" has been defined to mean a chronic disability resulting from any of the following (or any combination of the following): (1) an undiagnosed illness; or (2) medically unexplained chronic multisymptom illnesses that are defined by a cluster of signs or symptoms (examples include chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders). 38 C.F.R. § 3.317(a)(2). Signs and symptoms of undiagnosed illness and medically unexplained chronic multisymptom illnesses include, but are not limited to: fatigue, signs or symptoms involving skin, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system (upper or lower), sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, and menstrual disorders. 38 C.F.R. § 3.317(b). In this case, the Veteran asserts that he has congestive heart failure, chest pain, cirrhosis of the liver, irritable bowel syndrome, fatigue, joint pain, headaches, and respiratory problems, all possibly due to undiagnosed illnesses. He has not been afforded an examination to evaluate these complaints. Given that the Veteran is a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317 and has alleged symptoms that could be considered signs or symptoms of undiagnosed illness or medically unexplained chronic multisymptom illnesses, the Board finds that VA's duty to provide a VA examination and obtain a medical opinion has been triggered. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (stipulating that VA's duty to assist veterans, pursuant to the Veterans Claims Assistance Act of 2000, includes the duty to obtain a medical examination and/or opinion when necessary to make a decision on a claim). Specific instructions to the examiner are detailed below. It is noted that during service the Veteran complained of headaches, indigestion, shortness of breath, and joint pain. Currently, he complains of headaches, bowel difficulties, shortness of breath and joint pain, and has been diagnosed with gastroesophageal reflux disease and chronic obstructive pulmonary disease. The examiner should be asked to comment on whether the current symptoms are related to the in-service complaints. Since the Board has determined that a VA examination is necessary in the instant case, the Veteran is hereby informed that 38 C.F.R. § 3.326(a) (2012) provides that individuals for whom examinations have been authorized and scheduled are required to report for such examinations. The provisions of 38 C.F.R. § 3.655 (2012) address the consequences of a veteran's failure to attend scheduled medical examinations. That regulation provides that, when entitlement to a benefit cannot be established or confirmed without a current VA examination and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. During a July 2007 VA examination and in an August 2010 statement, the Veteran indicated that he was receiving disability benefits from the Social Security Administration (SSA). The documents pertaining to this application have not been associated with the claims folder. The possibility that SSA records could contain evidence relevant to the claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet. App. 183, 188 (2002). These records should be obtained on remand. Ongoing VA medical records should also be obtained. See 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Finally, the Board notes that many relevant records have been associated with the file since the April 2009 statement of the case was issued. No readjudication of the claims has taken place after receipt of these records. On remand, the AOJ should review and consider these records before readjudicating the claims. Accordingly, the case is REMANDED for the following action: 1. Obtain relevant treatment records from the VA New York Harbor Healthcare System (including outpatient clinics) dating since August 2009. 2. Request all documents pertaining to any application by the Veteran for SSA disability benefits, including the medical records considered in deciding the claim. 3. After the above has been accomplished to the extent possible, schedule the Veteran for a VA general medical examination and any required specialist examinations to determine the nature of his complaints of congestive heart failure, chest pain, cirrhosis of the liver, irritable bowel syndrome, fatigue, joint pain, headaches, and respiratory problems. The entire claims file (both the paper file and any electronic portion of the file) must be made available to and be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should provide an opinion as to the following: (a.) Are the Veteran's complaints of heart problems, liver problems, bowel and stomach problems, respiratory problems, chest pain, fatigue, joint pain, and headaches due to known clinical diagnoses? If so, what are the diagnoses? (b.) Does the Veteran have chronic fatigue syndrome or a functional gastrointestinal disorder (a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs or disease and may be related to any part of the gastrointestinal tract) excluding structural gastrointestinal diseases? (c.) Are the Veteran's current complaints of headaches at least as likely as not (50 percent or greater probability) related to his in-service complaints of headaches? (d.) Are the Veteran's current bowel and stomach complaints at least as likely as not related to his in-service complaint of indigestion? (e.) Are the Veteran's current complaints of shortness of breath at least as likely as not related to his in-service complaint of shortness of breath? (f.) Are the Veteran's current complaints of joint pain at least as likely as not related to his in-service complaints of joint pain? A rationale for all opinions expressed should be provided. 4. The AOJ should conduct any other development as may be indicated as a consequence of the actions taken in the preceding paragraphs. 5. Then, the record should again be reviewed, to include all evidence received since the claims were last adjudicated. If any benefit sought on appeal remains denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. 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 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). _________________________________________________ Laura H. Eskenazi Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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).