Citation Nr: 1324052 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 07-13 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for memory loss, to include as due to an undiagnosed illness. 2. Entitlement to service connection for fatigue, to include as due to an undiagnosed illness. 3. Entitlement to service connection for a cervical spine disability, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from January 1989 to June 1992, to include service in the Southwest Asia Theater of Operations from October 1990 to March 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claims for service connection for memory loss, fatigue, and a cervical spine disability. The Veteran's claims file was subsequently transferred to the RO in Pittsburgh, Pennsylvania. In October 2007, the Veteran testified before a Decision Review Officer. A transcript of the hearing has been associated with the claims file. In February 2013, the Veteran submitted additional evidence in support of his claims on appeal with a waiver of initial RO consideration of the evidence. See 38 C.F.R. § 20.1304 (2012). The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that certain documents, including VA medical records dated from July 2008 to June 2011, are potentially relevant to the issues on appeal. Thus, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The issue of entitlement to service connection for a multiple joint disability, to include as due to an undiagnosed illness, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ 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 Although the Board regrets the additional delay, after a review of the record, further development is required prior to adjudicating the Veteran's claims of entitlement to service connection for memory loss, fatigue, and a cervical spine disability. The Board previously remanded this claim in January 2011 in order to have a VA physician review the Veteran's entire claims file and provide VA medical opinions regarding whether the Veteran's memory loss, fatigue, and cervical spine disability were related to his period of service, to include as a result of an undiagnosed Gulf War illness. On VA examination in April 2011, the VA examiner reviewed the claims file and provided opinions that the Veteran's memory loss, fatigue, and cervical spine disability were not caused by or secondary to his period of service or any unexplained illness related to the Gulf War. However, in February 2013, the Veteran submitted a letter dated July 1997 from the Department of Defense and VA in which he was informed that the unit with which he had served in March 1991 had been in an area where exposure to a very low level of nerve agents was possible. The Veteran also submitted a report from the U.S. General Accounting Office regarding the Department of Defense's conclusions about U.S. troops and Gulf War illnesses. Given that this evidence was submitted subsequent to the April 2011 VA examiner, the Veteran should now be afforded a new VA examination with medical opinions from a physician clarifying whether the Veteran's memory loss, fatigue, and cervical spine disability are related to his exposure to nerve gas during service. In rendering the opinions, the VA examiner should consider the July 1997 letter regarding exposure to nerve gas and attached Department of Defense medical report. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, with respect to the cervical spine disability, the Veteran had reported at his April 2011 VA examination that in March 1990, he had fallen with his helmet on and hurt his cervical spine. He indicated that he had not sought treatment for this injury at the time it had occurred, but that he had received continuous chiropractic treatment for his neck since 1991. The VA examiner opined that the Veteran's degenerative arthritis of the cervical spine was not related to his period of service or due to any Gulf War unexplained illness and that his mild degenerative changes of the cervical spine were secondary to the normal changes of aging. However, it does not appear that the VA examiner considered the Veteran's lay statements regarding onset and continuity of symptomatology of his cervical spine disability. See Dalton v. Nicholson, 21 Vet. App. 23 (2007). Therefore, on remand, the VA examiner should also consider the Veteran's lay statements in rendering an opinion regarding whether the cervical spine disability was due to his reported March 1990 in-service fall. Relevant ongoing medical records should also be requested. 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). In particular, the Veteran reported at his April 2011 VA examination that he had been receiving chiropractic treatment for his cervical spine disability since 1991. However, the oldest treatment records in the claims file pertaining to the Veteran's cervical spine disability are dated in July 2005. As these chiropractic records are pertinent and may be helpful to the Veteran's claim for service connection for a cervical spine disability, they should be obtained. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for memory loss, fatigue, and a cervical spine disability. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. The Veteran should specifically be asked to provide the appropriate release form for the chiropractor who had treated him for his cervical spine disability since 1991. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination with a physician to obtain a medical opinion as to whether his current memory loss is related to his period of service, specifically, to his in-service nerve gas exposure. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current memory loss disability is due to in-service nerve gas exposure. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. The examiner should also provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. Schedule the Veteran for a VA examination with a physician to obtain a medical opinion as to whether his current fatigue is related to his period of service, specifically, to his in-service nerve gas exposure. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current fatigue disability is due to in-service nerve gas exposure. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. The examiner should also provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 4. Schedule the Veteran for a VA examination with a physician to obtain a medical opinion as to whether his current cervical spine disability is related to his period of service, to include his in-service nerve gas exposure. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current cervical spine disability arose during service or is otherwise related to any incident of service, to include a reported March 1990 fall, as well as in-service nerve gas exposure. The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. The examiner should also provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 5. After the development requested above has been completed, the record should again be reviewed. If the benefits sought on appeal remain 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 case should then be returned to the Board for further appellate consideration, if in order. The appellant 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). 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). _________________________________________________ WAYNE M. BRAEUER 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).