Citation Nr: 1322857 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 99-19 201 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for fatigue/tiredness, to include as a qualifying chronic disability under 38 C.F.R. § 3.317. 2. Entitlement to service connection for a right lung disorder (claimed as shadow on lung), to include as a qualifying chronic disability under 38 C.F.R. § 3.317. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. Davitian, Counsel INTRODUCTION The Veteran had active service from January 1991 to October 1991, including service in the Southwest Asia Theater in support of Operation Desert Storm from February 1991 to June 1991. He has also had periods of active duty for training and inactive duty for training since August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 1998 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in San Juan, Puerto Rico. These issues were previously before the Board in September 2003, February 2008, December 2011, and February 2013, at which time they were remanded for additional development. In November 2012 rating decision, the RO granted service connection for a respiratory disorder/asthma. As this represent a complete grant of the benefit sought on appeal, the issue is no longer before the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The Board's February 2013 remand observed that the issue of entitlement to a non-service-connected pension had been raised by the record but had not been adjudicated by the agency of original jurisdiction (AOJ). The Board referred the issue for appropriate action. A review of the record currently before the Board (including the Veteran's Virtual VA eFolder) indicates that the AOJ has not yet taken appropriate action on this issue. Therefore, the Board still does not have jurisdiction over it, and it is again referred for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND After carefully considering this matter, and for reasons expressed immediately below, the Board believes that this case must be remanded for further development of the record. The Board regrets the delay associated with this remand, especially considering that this matter was the subject of previous remands. However, another remand is necessary to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Board's February 2013 remand requested that VA conduct an examination. With respect to the Veteran's claimed fatigue/tiredness, the examiner was asked to address whether the Veteran's reports of fatigue/tiredness during the appeal period are/were attributable to some medically explained (known) illness or injury; and, if so, whether it was at least as likely as not that the disorder was related to any incident of active duty service, including the Veteran's service in the Persian Gulf during the Persian Gulf War. In the report of a March 2013 examination, a VA examiner stated that there was no evidence of a chronic fatigue syndrome found at that evaluation. The examiner stated that, as a result, an opinion concerning a chronic fatigue syndrome and the Veteran's service in the Persian Gulf War could not be rendered. The VA examiner failed to acknowledge the Veteran's reports of fatigue/tiredness during the appeal period, and failed to address whether they were attributable to some medically explained (known) illness or injury, and, if so, whether it was at least as likely as not that the disorder was related to any incident of active duty service. As a result, this medical opinion is inadequate. With respect to the Veteran's claimed right lung disorder, the examiner was asked to address whether a claimed shadow on the right lung was attributable to some medically explained (known) illness or injury. If so, the examiner was to express whether it was at least as likely as not that this medically explained illness was incurred during active military service or was related to any incident of active duty service. In the report of a March 2013 examination, a VA examiner stated that the fact that the Veteran had a calcified granuloma in his right lung only indicated previous exposure to a granulomatous disease or infection. The VA examiner failed to address whether such granulomatous disease or infection was incurred during active service or was related to any incident of active service. As a result, this medical opinion is inadequate. Each VA examiner was also asked to comment on and/or take note of the fact that the Veteran was competent to describe his symptoms while on active duty and since that time, even when his records were negative for complaints or a diagnosis. Each VA examiner was also asked to note that the Veteran was diagnosed with bronchitis during active duty service, and was presently service-connected for a respiratory disorder, diagnosed as asthma. Neither VA examiner did so. As VA did not conduct all necessary development, the development requested by the Board's February 2013 remand was not fully completed. A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). It imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Thus, in the present case additional development must be conducted. Finally, as this matter is being remanded for the reasons set forth above, any additional VA treatment records of the Veteran for his asserted disabilities should also be obtained. See 38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(b); 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). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC shall contact the appropriate VA medical facilities and attempt to obtain any ongoing medical treatment records pertaining to the Veteran's asserted disabilities. All records obtained must be associated with the Veteran's claims file. 2. The RO/AMC shall forward the Veteran's claims file to the examiner who conducted the March 2013 VA examination for fatigue/tiredness (or a suitable substitute if this individual is unavailable). The examination report should reflect that claims file review was accomplished. The examiner is asked to provide an addendum addressing whether the Veteran's reports of fatigue/tiredness during the appeal period are/were attributable to some medically explained (known) illness or injury; and, if so, whether it is at least as likely as not that the disorder is related to any incident of active duty service, including the Veteran's service in the Persian Gulf during the Persian Gulf War. The examiner should note that the Veteran was diagnosed with bronchitis during active service, and is presently service-connected for a respiratory disorder, diagnosed as asthma. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for the asserted disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. A complete rationale for each opinion must be provided. 3. The RO/AMC shall forward the Veteran's claims file to the examiner who conducted the March 2013 VA examination for right lung disorder (or a suitable substitute if this individual is unavailable). The examination report should reflect that claims file review was accomplished. The examiner is asked to provide an addendum addressing whether the claimed shadow on the right lung (referred to by radiologists as a calcified granuloma) is attributable to some medically explained (known) illness or injury. If it is attributable to a medically explained (known) illness or injury, the examiner must opine as to whether it is at least as likely as not that this medically explained illness was incurred during active military service or is related to any incident of active duty service, including the Veteran's exposure to environment hazards in the Persian Gulf during the Persian Gulf War. The examiner should note that the Veteran was diagnosed with bronchitis during active duty service, and is presently service-connected for a respiratory disorder, diagnosed as asthma. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for the asserted disability in the Veteran's service treatment records cannot, standing alone, serve as the basis for a negative opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered. A complete rationale for each opinion must be provided. 4. The RO/AMC will then review the Veteran's claims file and ensure that the foregoing development actions have been conducted and completed in full, and that no other notification or development action, in addition to those directed above, is required. If further action is required, it should be undertaken prior to further claims adjudication. 5. The RO/AMC will then readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, he and his representative shall be provided a Supplemental Statement of the Case. An appropriate period of time must be allowed for response. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ DEMETRIOS G. ORFANOUDIS 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).