Citation Nr: 1327276 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 07-21 071 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a disability manifested by flu-like symptoms and vertigo, to include as due to inoculations. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Becker, Associate Counsel INTRODUCTION The Veteran served on active duty in the Army from January to June 1991. He also had additional service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Service connection for right foot pain to include heel injury, left foot pain to include heel injury, chronic fatigue syndrome (CFS), Bell's palsy, hair loss, panic disorder (claimed as anxiety attacks), posttraumatic stress disorder (PTSD), bipolar disorder, depression, and an unexplained illness/Gulf War syndrome with fever, chills, night sweats, and flu-like symptoms was denied therein. The Veteran appealed each of these determinations. In November 2011, the Veteran testified before the undersigned Veterans Law Judge at a hearing regarding this matter. The Board consolidated the panic disorder PTSD, bipolar disorder, and depression issues into one issue of an acquired psychiatric disorder in March 2012. The unexplained illness/Gulf War syndrome issue was recharacterized as one of a disability manifested by flu-like symptoms and vertigo. All issues were remanded for additional development. Service connection for right foot plantar fasciitis, left foot plantar fasciitis, Bell's palsy, alopecia, and an anxiety disorder was granted by the Appeals Management Center (AMC) in a January 2013 rating decision. It was determined that CFS is part of the anxiety disorder. As such, the benefit sought has been granted for all issues with the exception of a disability manifested by flu-like symptoms and vertigo. Based on review of the Veteran's claims file in addition to his Virtual VA "eFolder," this issue once again is remanded to the RO via the AMC in Washington, DC. VA will notify the Veteran when further action is required on his part. REMAND The Board sincerely regrets the delay another remand entails, but adjudication of service connection for a disability manifested by flu-like symptoms and vertigo cannot be undertaken as of yet. More development is needed to ensure that the Veteran is afforded every possible consideration. VA indeed has a duty to assist him in substantiating his entitlement to the benefit sought. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). VA must assist by providing a medical examination or obtaining a medical opinion when necessary in addition to assisting in the procurement of relevant records. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). A medical examination and/or medical opinion is necessary when there is evidence that the Veteran has a current disability or persistent or recurrent symptoms of a disability, evidence that he suffered an event, injury, or disease in service or manifested a certain disease during its presumptive period, an indication that the current disability or symptoms of a disability may be associated with the event, injury, or disease in service or during the presumptive period, and insufficient evidence for adjudication. Id.; McLendon v. Nicholson, 20 Vet. App. 79 (2006). Indication that there may be an association is a low threshold. For example, it is satisfied by medical evidence that suggests but does not confirm a nexus and credible lay evidence of continuity of symptomatology. McLendon, 20 Vet. App. 79. In its previous remand, the Board found that the aforementioned requirements had been met. The Veteran's service treatment records document his receipt of several inoculations, to include for small pox, measles, tetanus, diphtheria, polio, tuberculosis, tine, flu, adenovirus, and meningitis conjugate, as well as his treatment for flu-like symptoms. He has complained of persistent symptoms ever since shortly after service, described at the hearing as 1991 or 1992 and in various statements as 1993 or 1994. Post-service private treatment records reveal treatment in this regard since at least 1998. Private physician Dr. D.C. further opined in February and March 2007 letters that the Veteran's flu-like symptoms are more likely than not due to his service. No rationale was supplied other than that no other cause was evident. As such, a VA medical examination complete with medical opinion was directed. A Board remand confers upon the veteran the right to compliance with the directives therein. Stegall v. West, 11 Vet. App. 268 (1998). Strict compliance is not necessary, but there must be at least substantial compliance. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). Here, there has not been even substantial compliance with the Board's aforementioned directive. The Veteran underwent a series of VA medical examinations regarding the other issues which also originally comprised this matter, but he was not examined at all with respect to a disability manifested by flu-like symptoms and vertigo. It follows that no medical opinion was provided in this regard. To cure this oversight, arrangements now must be made for a VA medical examination complete with medical opinion. In addition to providing a VA medical examination and/or medical opinion when necessary, reasonable efforts must be made by VA to assist in the procurement of pertinent records. 38 U.S.C.A. § 5103A(b) (West 2002); 38 C.F.R. § 3.159(c) (2012). Reasonable efforts with respect to records in Federal custody consist of making as many requests as are necessary to obtain them unless it is concluded that they do not exist or that further requests would be futile. 38 U.S.C.A. § 5103A(b)(3) (West 2002); 38 C.F.R. § 3.159(c)(2) (2012). When the existence of non-Federal records is discovered, the claimant must submit them or provide enough information to identify and locate them along with an authorization for their release to VA. 38 C.F.R. §§ 3.159(c)(1), (e)(2) (2012). If information and authorization is provided, reasonable efforts consist of an initial request and one or more follow-up requests if necessary. 38 C.F.R. § 3.159(c)(1) (2012). The claimant shall be notified if requested records, whether Federal or non-Federal, cannot be or are not obtained. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). VA treatment records dated as recently as May 2011 were obtained pursuant to the Board's previous remand. Such records plausibly could be expected to be before the Board, and thus the Board has constructive notice of them. Bell v. Derwinski, 2 Vet. App. 611 (1992). As many requests as are necessary thus must be made for any dated from May 2011 to present. Treatment records from numerous private facilities and physicians were obtained prior to the Board's previous remand. This includes those from Carl Albert I.H.S. and Claremore I.H.S. Some private treatment records identified by the Veteran following the Board's previous remand also have been obtained. However, those from Carl Albert I.H.S., Claremore I.H.S., and the Absentee Shawnee Tribe Little Axe Clinic have not been obtained. The Veteran desired to proceed without these records as of December 2012. To the extent that he has changed his mind, he must be instructed to submit them or once again provide enough information to identify and locate them along with an authorization for their release to VA. The same instructions must be made for any private treatment records newly identified by him. If he provides information and authorization, an initial request for the private treatment records with follow-up requests as necessary must be made. Both the Veteran and his representative must be notified if requests for any records are unsuccessful. Finally, all of the aforementioned must be completed prior to the VA medical examination complete with medical opinion so that all of the evidence can be considered at that time. Given the above, a REMAND is directed for the following: 1. Make as many requests as necessary to obtain any VA treatment records regarding the Veteran dated from May 2011 to present. Associate all records received with the claims file or "eFolder." 2. Ask the Veteran to submit his outstanding treatment records from Carl Albert I.H.S., Claremore I.H.S., the Absentee Shawnee Tribe Little Axe Clinic, and any other private facility or physician providing treatment for his flu-like symptoms and/or vertigo or to provide enough information to identify and locate such records along with an authorization/reauthorization for their release to VA. If he provides the information and authorization/reauthorization, make an initial request for the records with a follow-up request or requests as necessary. Associate all records received with the claims file or "eFolder." 3. If requested records, whether VA or private, ultimately are not received or are received but are incomplete, notify the Veteran and his representative pursuant to established procedure. Document the claims file or Virtual VA "eFolder" as appropriate in this regard. 4. After completion of the above, arrange for the Veteran to undergo an appropriate VA medical examination regarding his flu-like symptoms and vertigo. The claims file and pertinent documents in the "eFolder" shall be made available to and reviewed by the examiner. The examiner shall interview the Veteran regarding his relevant symptoms. All tests and studies deemed necessary shall be performed. The examiner thereafter shall opine as to each condition present, whether it encompasses one, some, or all of the Veteran's symptoms. A clear and complete rationale shall be provided in this regard. This shall include an explanation as to how the diagnosis or diagnoses made were reached. It also shall include identification of any symptoms not attributed to a diagnosis and an explanation as to why they were not attributed to a diagnosis. Symptoms of the Veteran's CFS, for which he already is service connected through his anxiety disorder, shall not be considered. Finally, the examiner shall opine for each diagnosed condition as to whether it is at least as likely as not (a 50 percent or greater probability) that it is related to the Veteran's service. Consideration shall be given in this regard to his inoculations during service, his flu-like symptoms during service, and otherwise. A clear and complete rationale shall be provided. This shall include a discussion of pertinent medical principles, with a citation for and copy if possible of any literature referenced, as well as the pertinent medical and lay evidence. Dr. D.C.'s February and March 2007 opinion letters, in particular, shall be thoroughly discussed. If an opinion cannot be provided without resort to speculation, the rationale shall include a discussion of whether this is because more information is needed, information that cannot be obtained is needed, the limits of current medical knowledge have been exhausted, there are multiple possible etiologies with none more likely than not the cause, or some other reason. Each of the above actions shall be documented fully by the examiner in a report. A copy of the report shall be placed in the claims file or "eFolder." 5. Lastly, readjudicate the Veteran's entitlement to service connection for a disability manifested by flu-like symptoms and vertigo. If this benefit is not granted, furnish him and his representative with a supplemental statement of the case (SSOC) and allow them the requisite time period to respond. A copy of the SSOC shall be placed in the claims file or "eFolder." No action is required of the Veteran until he is notified by the RO or AMC. However, he is advised that his failure to report for a scheduled VA medical examination may result in denial of the benefit sought. 38 C.F.R. § 3.655 (2012). He also is advised that he has the right to submit additional evidence and argument regarding this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law requires that all matters remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Only a decision of the Board is appealable to the Court. 38 U.S.C.A. § 7252 (West 2002). A remand is in the nature of a preliminary order and does not constitute a decision on the merits by the Board. 38 C.F.R. § 20.1100(b) (2012).