Citation Nr: 1327892 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 10-05 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a neurologic disability, to include as due to undiagnosed illness, claimed as fatigue/nerves. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Dale, Counsel INTRODUCTION The Veteran served on active duty from October 1989 to November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In February 2012 and December 2012, the Board remanded the Veteran's claim for further evidentiary development. The subsequent actions of the RO and VA Appeals Management Center (AMC) will be further discussed below. The Veteran's claim has been returned to the Board. The appeal is REMANDED to the RO via the AMC, in Washington, DC. VA will notify the Veteran if further action is required. REMAND As noted by the Board in the February 2012 remand, the Veteran asserts that as a result of his Southwest Asia service, during which he was exposed to depleted uranium, "nerve agents" and other toxins, he experiences abnormally high levels of uranium in his blood, memory problems, visual disturbances, light sensitivity, headaches, muscle twitches, fatigue, rashes, and other neurologic symptoms. The medical evidence of record, both VA and private, reflects evidence of abnormal brain activity, fatigue, peripheral numbness as well as abnormal laboratory blood tests. However, the Veteran was also involved in a motorcycle accident in the early 1990s after his military service which, by his report to the November 2009 VA neurological disorders examiner, resulted in a head injury. As well as the regulations governing direct service connection, under the provisions of specific legislation enacted to assist veterans of the Persian Gulf War, service connection may be established for a qualifying chronic disability which became manifest either during active 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, 2011. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a). Although the Veteran was provided VA examinations in connection with his claim in October 2009 and November 2009, the Board concluded in the February 2012 remand that these examinations were inadequate for the purpose of adjudicating the Veteran's claim. Therefore, the February 2012 Board remand directed the AMC to (1) obtain any private treatment records pertaining to the Veteran's motorcycle accident in the early 1990s which resulted in a head injury, (2) obtain updated VA treatment records, and (3) afford the Veteran an appropriate VA examination to determine the etiology of the Veteran's neurologic complaints. Specifically, the examiner was directed to state whether the neurologic complaints are attributable to a known diagnosis or cause, to include the post-service motor vehicle accident, and if so, identify the diagnosis and provide an opinion complete with rationale as to that attribution. If the Veteran's neurological complaints were not found to be attributable to a known diagnosis, the examiner was directed opine as to whether such constituted undiagnosed illness consistent with the Veteran's Southwest Asia service from October 1990 to April 1991. The examiner was also directed to provide a complete rationale for any opinion stated. Further, the AMC was directed to again request that the Veteran identify any and all treatment records (VA and private) pertaining to injuries he sustained due to his motorcycle accident in the early 1990's. In a March 2012 letter, the AMC requested the Veteran to identify any records pertaining to his motorcycle accident in the early 1990's, accompanied with a completed release so that VA may obtain the records. The Veteran did not respond to this request. In April 2012, the AMC scheduled the Veteran for a VA examination as directed by the Board in the February 2012 remand. The April 2012 VA examination request reflects that the Board's February 2012 remand directives were accurately conveyed. However, rather than affording the Veteran another VA examination in connection with his claim, his file was transferred to the November 2009 VA examiner who, after reviewing the claims file again, opined that the Veteran's cognitive disorder and muscle fasciculations were not related to his Gulf War service, to include exposure to various toxins, or his motorcycle accident. In December 2012, the Board concluded that the May 2012 VA opinion was inadequate for the purpose of adjudicating the Veteran's claim, because the examiner did not adequately address the onset, frequency, duration and etiology of the Veteran's neurological symptomatology, to include visual disturbances, light sensitivity, headaches, fatigue, and rashes. In light of above, the Board remanded the Veteran's claim because the May 2012 VA opinion was inadequate for the purpose of adjudicating the Veteran's claims, and thus, the Board's February 2012 remand directives had not been substantially completed. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (when the VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate); Stegall v. West, 11 Vet. App. 268 (1998) (RO compliance with a remand is not discretionary; if the RO fails to comply with the terms thereof, another remand for corrective action is required.) In a February 2013 letter, the AMC requested that the Veteran identify any records pertaining to his motorcycle accident in the early 1990s, accompanied with a completed release so that VA may obtain the records. Once again, the Veteran did not respond to this request. In March 2013, the AMC requested that the Veteran be scheduled for a VA examination as directed by the Board in the December 2012 remand. However, a May 2013 computer printout reflects that the Veteran called the VA Medical Center (VAMC) and cancelled the examination. Later that month, the AMC continued the denial of the Veteran's claim, and his claim claims file was transferred back to the Board. The Board is aware of the provisions of 38 C.F.R. § 3.655, that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination, and a claimant, without good cause, fails to report for such examination, or reexamination, and the examination was scheduled in conjunction with a claim for increase, as was the claim here, the claim shall be denied. However, in the present case, the medical questions which must be addressed are beyond the purview of the Board, and the United States Court of Appeals for Veteran's Claims (the Court) has held that the Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In light of above, the Board concludes that the AMC should, once again, attempt to provide the Veteran with a VA examination in connection with his claim. If, however, the Veteran cancels this examination or fails to report for such, his claims file should be transferred to an appropriate VA examiner in order to obtain adequate medical opinions which satisfy the Board's prior remand directives. Barr and Stegall, both supra. As this claim must be remanded, the Board finds that the AMC should again request that the Veteran identify any and all treatment records (VA and private) pertaining to injuries he sustained due to his motorcycle accident in the early 1990s. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran, and request him to identify or submit any additional pertinent evidence in support of his claim. Specifically, request that he identify the treatment records pertaining to his motorcycle accident in the 1990s, and request that he either forward these records to VA, or authorize VA to obtain them. Based on the Veteran's response, attempt to procure copies of all relevant records, and document all attempts to secure this evidence in the claims file. If the records are unavailable, notify the Veteran, identify the specific records the RO is unable to obtain, briefly explain the efforts that the RO made to obtain those records, and describe any further action to be taken by the RO with respect to the claim. Give the Veteran an opportunity to respond. 2. After the records documenting treatment for the Veteran's post-service motor vehicle accident have been obtained or determined to be unavailable, schedule the Veteran for a VA examination with an examiner with appropriate expertise in neurology. Ask that he or she review the claims file, to include the July 1997 DOD letter and any records relating to the Veteran's post-service motor vehicle accident, and interview the Veteran as to the onset, frequency, and duration of his symptoms, to include high levels of uranium in his blood, memory problems, visual disturbances, light sensitivity, headaches, muscle twitches, fatigue and rashes. All necessary testing should be completed, to include blood testing, an MRI of the Veteran's brain and appropriate nerve and muscle testing. Thereafter, the examiner should address the following: (a) State whether any of the Veteran's symptoms are attributable to a known clinical diagnosis or whether these problems are manifestations of an undiagnosed illness including a medically unexplained chronic multisymptom illness as identified in 38 U.S.C.A. § 1117(g). (b) If any of the Veteran's symptoms are attributable to a known clinical diagnosis/diagnoses, the examiner should state a medical opinion as to whether it is at least as likely as not (50 percent probability or more) that any current disability is causally or etiologically related to his active military service as opposed to its being more likely due to some other factor or factors. (c) If the Veteran's symptoms cannot be ascribed to any known clinical diagnosis (or if diagnosed as a medically unexplained chronic multisymptom illness), specify whether the Veteran has objective indications of a chronic disability resulting from an undiagnosed illness, as established by history, physical examination, and laboratory tests, that have either (1) existed for 6 months or more, or (2) exhibited intermittent episodes of improvement and worsening over a 6-month period. If the Veteran cancels or fails to report for the scheduled examination, the claims file should be transferred to an appropriate VA clinician who must address the above questions. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it. A complete rationale must be provided for any opinion offered. 3. Notify the Veteran that he must report for any scheduled examination and cooperate in the development of the claim. Failure to report for a VA examination without good cause may result in denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2012). 4. Readjudicate the issue on appeal. If any benefit sought on appeal remains denied, issue an additional Supplemental Statement of the Case. After the Veteran and his representative have had an adequate opportunity to respond, return the appeal to the Board. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board or by the Court 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). _________________________________________________ ROBERT C. SCHARNBERGER 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).