Citation Nr: 1337203 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-18 838 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to service connection for cervical spine arthritis (neck disability). 2. Entitlement to service connection for headaches, to include as caused by an undiagnosed illness related to Persian Gulf service. 3. Entitlement to service connection for a disability variously described as neurocardiogenic syncope and/or dizzy spells, claimed as secondary to chronic neck stiffness, or caused by an undiagnosed illness related to Persian Gulf service. 4. Entitlement to service connection for atrial fibrillation, to include as caused by an undiagnosed illness related to Persian Gulf service. 5. Entitlement to an initial disability rating in excess of 30 percent for dysthymia, to include cognitive dysfunction. 6. Entitlement to service connection for a right knee disability. 7. Entitlement to service connection for a left knee disability. 8. Entitlement to service connection for a right ankle disability. 9. Entitlement to service connection for a left ankle disability. 10. Entitlement to service connection for a kidney disorder. 11. Entitlement to service connection for a right hand scar. 12. Entitlement to service connection for a left hand scar. 13. Entitlement to service connection for chest pain. 14. Entitlement to service connection for residuals of an intestinal infection. 15. Entitlement to service connection for shortness of breath. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to April 1995, including service in Southwest Asia from September 1990 to May 1991. This matter comes before the Board of Veterans' Appeals (Board) from RO decisions of August 2007, November 2008, and October 2009. The issues of entitlement to service connection for a right knee disability, a left knee disability, a right ankle disability, a left ankle disability, a kidney disorder, a right hand scar, a left hand scar, chest pain, residuals of an intestinal infection, and for shortness of breath, were viewed by the RO and certified to the Board as involving clear and unmistakable error in a prior RO decision. As explained below, however, the Board disagrees with this view of the claims. We have therefore recharacterized the issues on appeal as reflected on the title page to more accurately reflect their current and proper procedural posture. The issues of entitlement to service connection for headaches; entitlement to service connection for a disability variously described as neurocardiogenic syncope and/or dizzy spells, claimed as secondary to chronic neck stiffness, or caused by an undiagnosed illness related to Persian Gulf service; entitlement to service connection for atrial fibrillation, to include as caused by an undiagnosed illness related to Persian Gulf service; entitlement to an initial disability rating in excess of 30 percent for dysthymia, to include cognitive dysfunction; entitlement to service connection for a right knee disability; entitlement to service connection for a left knee disability; entitlement to service connection for a right ankle disability; entitlement to service connection for a left ankle disability; entitlement to service connection for a kidney disorder; entitlement to service connection for a right hand scar; entitlement to service connection for a left hand scar; entitlement to service connection for chest pain; entitlement to service connection for residuals of an intestinal infection; and entitlement to service connection for shortness of breath are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Two statements from the Veteran's treating endocrinologist dated in June and July 2006 reflect that he had a "probable nodular goiter" and "subclinical thyrotoxicosis." A July 2006 letter from the Veteran's primary care physician explicitly raises the possibility that a nodular goiter of the thyroid was caused by exposure to low level radiation from depleted uranium. The Board interprets these medical opinions and letters written in support of the Veteran's VA claims, as implicit claims for service connection for thyroid nodular disease and all secondary disabilities, but this is unclear. This claim is referred to the RO for appropriate action, if needed. In written argument of March 2011, the Veteran's representative identifies a pending, unadjudicated claim for service connection for otitis externa. This matter is also referred to the RO for appropriate action. FINDING OF FACT Cervical spine arthritis is not shown to have resulted from a boom accident in service, and arthritis was not shown within one year of discharge from service. CONCLUSION OF LAW Service connection for cervical spine arthritis is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in the Virtual VA file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the claimant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1110. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). When a chronic disease such as arthritis becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although there is no categorical requirement of " 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,' " more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury, in service." Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). "Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau, 492 F.3d at 1377. Further, if the disability is of the type for which lay evidence is competent, the Board must then weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed.Cir.2006). A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Cervical spine arthritis The Veteran contends he was hit in the head by a wrecker boom in Saudi Arabia and that he had experienced cervical muscle spasms afterwards. His service treatment records do not reflect this incident. However, we observe that his service treatment records do not include any records from Saudi Arabia, or any records dated between September 1990 and May 1991, which is the time frame when he was stationed in Southwest Asia. During his separation medical examination in April 1995, he claimed he still felt the residuals of the spasms in his neck when he did pushups or heavy lifting. The Veteran's post-service treatment records reveal no complaints or findings involving neck or cervical spine pain until 2006, when he reported to a VA examiner that he experienced neck pain in relation to right shoulder pain. Although he received private chiropractic treatment from 2001 to 2006, he did not complain of or receive treatment for neck problems during this time period. A November 2005 report indicates the Veteran had had no recent headache or neck pain. Review of treatment records from 2007 onward reflects that initially his neck pain was treated as part and parcel of his headaches until x-ray studies and a magnetic resonance imaging study in 2008 revealed arthritis with some spurring and stenosis. Thus, recent medical records, including X-ray studies and magnetic resonance imaging studies, confirm arthritis of the cervical spine with disc involvement and cervical facet arthropathy. Following a clinical examination and records review in November 2010, a VA examiner opined that it is less likely that the Veteran's in-service injury caused the currently-shown arthritis, given that the onset of neck pain which was associated with arthritis occurred approximately ten years after service. In short, the preponderance of the evidence is against a finding of service connection for cervical spine arthritis. There is no indication of arthritis, or indeed neck complaints during service. There is no indication of arthritis within one year of service; therefore service incurrence cannot be presumed under law. Simply, the currently-shown arthritis was initially diagnosed many years after service and is not shown to be related to service in any other way. The period of time following service during which the Veteran received medical care for other problems, to include chiropractic care, but did not report any difficulty with his cervical spine is particularly persuasive in finding absence of continuity of symptomatology between service and 2006 or 2007. Maxson. In reaching this conclusion, the Board wishes to clarify that for the limited purposes of this decision, we fully accept the Veteran's report of having been struck in the head by a boom in Saudi Arabia. The absence of medical records documenting this event does not disprove its occurrence, as there are no medical treatment records whatsoever reflecting the Veteran's time in Southwest Asia. Furthermore, we observe that the Veteran has faithfully and consistently reported this event from his discharge from service until the present. There is no reason to question his credibility on this matter and we do not. The question is whether this injury caused this current problem. For this reason, the VA obtained a medical opinion as to whether the reported accident could be the source of the Veteran's current arthritis and neck pain. As set forth above, however, the November 2010 VA examiner opined that the period of time between the boom accident in 1990 or 1991 and the development of complaints and symptoms of arthritis in 2006 or 2007 was simply too long to support a linkage between the two, providing evidence that made it less likely (less than a 50% chance) that there is a connection), even when one takes into consideration the Veteran's lay statements. In this regard, the Veteran's own belief that there is a connection is of limited probative value as he does not have the medical knowledge to connect the problems. The preponderance of the evidence is against the claim and the appeal for service connection for arthritis of the cervical spine must be denied. When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was provided with this information in an August 2006 letter prior to the initial RO review of the case. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). The Board finds that the VA examinations obtained in this case are adequate. The examination reports relied upon were predicated on a review of the claims folder and the relevant medical records contained therein, contain a description of the history of the disabilities at issue; and document and consider the Veteran's complaints and symptoms. The examiners considered the available pertinent evidence of record, and provided a rationale for the opinions rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion regarding the Veteran's cervical spine pathology has been met. 38 C.F.R. § 3.159(c)(4). Service treatment records, private medical records, VA treatment records, and VA examination reports have been obtained and reviewed in support of the Veteran's claim. All relevant records and contentions have been carefully reviewed. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matter decided herein. ORDER Service connection for arthritis of the cervical spine is denied. REMAND Unfortunately, the Board finds that the remaining issues on appeal are not yet ripe for appellate review, and a remand is thus required. Disabilities claimed as caused by undiagnosed illness related to Persian Gulf service Service connection may be established for a Persian Gulf Veteran, such as the Veteran in this case, who exhibits objective indications of a qualifying chronic disability that became manifest 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. 38 U.S.C.A. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). Objective indications of a chronic disability include both 'signs,' in the medical sense of objective evidence perceptible to an examining physician, and other, non medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multi- symptom illness include, but are not limited to, fatigue, headache, neurologic signs or symptoms, neuropsychological signs or symptoms, and cardiovascular signs or symptoms. 38 C.F.R. § 3.317(b). Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six month period will be considered chronic. The six month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A disability referred to in this section shall be considered service connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2)(5). Compensation may be paid under 38 C.F.R. § 3.317 for disability which cannot, based on the facts of the particular Veteran's case, be attributed to any known clinical diagnosis. The fact that the signs or symptoms exhibited by the Veteran could conceivably be attributed to a known clinical diagnosis under other circumstances not presented in the particular Veteran's case does not preclude compensation under § 3.317. VAOPGCPREC 8- 98. Claims brought under these provisions differ from direct service connection claims in that there is no requirement that a nexus be established between the undiagnosed illness and service. "Congress has decided as a matter of policy, stemming at least in part from difficulty of proof, that, even though a Persian Gulf War veteran's symptoms may not at this time be attributed to a specific disease, the symptoms may nonetheless be related to conditions in the Southwest Asia theater of operations and, for that reason, are presumed to be service connected. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(1)(i)." Gutierrez v. Principi, 19 Vet. App. 1 (2004). The Veteran is claiming that disabilities including headaches, neurocardiogenic syncope and/or dizzy spells, and atrial fibrillation may have been caused by an undiagnosed illness related to Persian Gulf service. The Veteran's service treatment records show that he was evaluated as part of a medical program aimed at learning more about "Persian Gulf Syndrome," prior to his discharge from service. Specifically, he underwent some preliminary evaluation at Fort Drum in early November 1994, and then he underwent further evaluation at Walter Reed Medical Center in Washington, D.C., later in November 1994. However, complete records reflecting such evaluation have not been associated with his available service treatment records. For instance, although some test results from Walter Reed are available for review, no medical interpretation of these results, no clinical evaluation reports, and no conclusions from the overall evaluation are available. A stay at a hospital such as the Walter Reed Medical Center for participation in a wide-ranging study such as the ones which were conducted by the Army to evaluate Persian Gulf Syndrome would be expected to have produced much more extensive documentation and analysis than is currently contained in the Veteran's claims file. Furthermore, it does not appear that clinical records from the Walter Reed Medical Center have been specifically requested. Therefore, prior to further review of the Veteran's claims for these disabilities, his complete records should be obtained for review. Careful review of the evidence of record reveals medical opinions indicating that these disabilities may be secondary to thyroid dysfunction. As the Board has referred a 2006 claim for service connection for thyroid nodular disease, to include as a radiogenic disease under the provisions of 38 C.F.R. § 3.311, claims for any disease which might have been proximately caused by this disease are by definition inextricably intertwined with the underlying, or primary, claim. Thus, if service connection cannot be granted under any other theory of entitlement, to include under the laws and regulations governing Persian Gulf War veterans, then the RO will need to adjudicate the thyroid claim before rendering a determination on the secondary service connection claims. Dysthymia to include cognitive dysfunction The Veteran is claiming that a higher initial disability rating for his dysthymia is warranted. Because service connection for dysthymia was granted effective in July 2006, the time period at issue is from July 2006 through the present. Fenderson v. West, 12 Vet. App. 119 (1999). Because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007); Hart v. Mansfield, 21 Vet. App. 505 (2007). Initially, we observe that the evidence indicates the Veteran did not seek out ongoing counseling or mental health therapy during the years between 2006 and 2009. However, a September 2009 VA medical record reflects that the Veteran was planning to start seeing a psychologist in Watertown, South Dakota. Such records are not available for review, and are likely to be relevant to the matter of the appropriate disability rating for his dysthymia. Therefore, they should be obtained prior to further review of this appeal. Secondly, the Board notes that the Veteran filed a claim for service connection for cognitive dysfunction in October 2009. The RO interpreted this claim as a claim for an increased rating for his dysthymia, explaining in June 2010, that the Veteran's symptoms of cognitive dysfunction were already being evaluated as part of his service-connected dysthymia. The RO then proceeded to deny an increased disability rating in the June 2010 decision. While the Board approves of this implicit grant of service connection for cognitive dysfunction, we disagree with the implicit conclusion that the symptomatology of the Veteran's cognitive disorder is easily wrapped into the criteria for rating mental health disorders. Neuropsychiatric testing in July 2008 yielded results showing clear impairments in auditory verbal memory, inconsistent attentional processes, and impairment in letter fluency. His pattern of performance on these tests was deemed consistent with a diagnosis of unspecified cognitive disorder. These symptoms would appear to fit more neatly into the criteria for rating neurological dysfunction. Thus, upon remand, the RO should perform an initial consideration as to whether a separate disability rating for cognitive dysfunction is warranted. Claims certified as involving clear and unmistakable error in a prior RO decision Claims for entitlement to service connection for a right knee disability, a left knee disability, a right ankle disability, a left ankle disability, a kidney disorder, a right hand scar, a left hand scar, chest pain, residuals of an intestinal infection, and for shortness of breath, were all denied by the Waco, Texas, RO in June 1995. Several of the claims were denied in part because no mention of the disabilities was included in the available service treatment records. In April 2008, the Veteran's representative observed that the RO had received the Veteran's complete service treatment records after the June 1995 decision had been rendered; in other words, the decision had been made with only incomplete service treatment records. The representative referred to this sequence of events as "clearly and unmistakably an error" on the RO's part. Since April 2008, the claims have been treated as involving clear and unmistakable error under the provisions of 38 C.F.R. § 3.105, which involve an extremely high standard of proof to overcome a prior, final decision. The use of the phrase involving clear and unmistakable error, however, represents a red herring in this case, which has tainted the VA's review of the issues on appeal throughout the appeal, however. The situation of receiving new service treatment records after the promulgation of a RO decision is covered not by 38 C.F.R. § 3.105, but rather by 38 C.F.R. § 3.156(c). This regulation provides that when VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim on a de novo basis, regardless of any prior finality. 38 C.F.R. § 3.156. Careful review of the RO's treatment of these ten issues shows that the higher standard involved in the claim of error has also tainted the treatment given to them throughout the current appeal process. Furthermore, the standard of review to be applied has been confused and unclear throughout the appeal period. While listing the clear and unmistakable error standard as applicable, the RO has confusedly noted that if the records were not available for review at the time of the decision, the impact of this must be considered (November 2012 Supplemental Statement of the Case); and has also discussed the duty to assist, the well-grounded standard, and the benefit of the doubt standard (December 2010 Statement of the Case and January 2011 Supplemental Statement of the Case). The Veteran's representatives have compounded the confusion by continuing to argue that a breach of the duty to assist constitutes a "clear and unmistakable" error in this matter. A breach of the duty to assist cannot form the basis of a CUE claim. See Caffrey v. Brown, 6 Vet. App. 377 (1994) (VA's breach of duty to assist caused incomplete record but not incorrect record). To be fair to the Veteran, given this situation, due process requires that the RO begin again, with a clean slate, providing correct notice to the Veteran and his representative as to the correct procedural posture of the case, then undertaking all appropriate evidentiary development, and finally adjudicating the claims on a de novo basis, to include a complete review of the entire record, utilizing the appropriate benefit of the doubt standard. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In this regard, we observe that the Board has ordered further evidentiary development to include a request for additional clinical service records. It is reasonable that the RO should wait until such records have been obtained before reviewing these claims on a de novo basis. As the Veteran continues to seek VA medical care, his VA records should be updated for the file. VA medical records are deemed to be constructively of record in proceedings before the VA. Bell v. Derwinski, 2 Vet. App. 611 (1992). In this regard, we observe that VA medical records dated in 2012 have been associated with his Virtual VA file, but no VA records from 2011 have been included. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should make as many specific requests as are necessary to obtain all clinical and outpatient records pertaining to the Veteran which were generated at both Fort Drum and Walter Reed Medical Center in November 1994 in connection with studies related to Persian Gulf War Syndrome. The appropriate repositories to where such records may have retired should be contacted. Such efforts must continue until VA can conclude that the records do not exist or that further efforts to obtain them would be futile. 2. The RO should obtain the names and addresses of all non-VA medical care providers who have treated the Veteran for dysthymia and/or cognitive dysfunction since 2009. In particular, the Veteran is requested to identify any psychological treatment he pursued in Watertown from 2009 onward. After securing any necessary release, the RO should obtain these records for inclusion in the claims file. 3. The RO should obtain all records of VA medical treatment afforded to the Veteran in 2011, and from November 2012 onward by the Sioux Falls VA Medical System and all related facilities, including Community Outpatient Centers and Vet Centers, for inclusion in the claims file. In this regard, the Veteran himself is asked to provide all pertinent records that would support his claims and speed up the adjudication of his case. If no additional pertinent records are available, it would be of great assistance if the Veteran would indicate this in writing to the VA as soon as possible to avoid further delay. 4. The Veteran should be provided with adequate VCAA notice as to his claims for entitlement to service connection for a right knee disability, a left knee disability, a right ankle disability, a left ankle disability, a kidney disorder, a right hand scar, a left hand scar, chest pain, residuals of an intestinal infection, and for shortness of breath, which reflects their status as claims to be reviewed on a de novo basis 5. Any indicated evidentiary development with regard to claims for entitlement to service connection for a right knee disability, a left knee disability, a right ankle disability, a left ankle disability, a kidney disorder, a right hand scar, a left hand scar, chest pain, residuals of an intestinal infection, and for shortness of breath should be undertaken. 6. AFTER accomplishing the development requested above, the RO/AMC should adjudicate claims for entitlement to service connection for a right knee disability, a left knee disability, a right ankle disability, a left ankle disability, a kidney disorder, a right hand scar, a left hand scar, chest pain, residuals of an intestinal infection, and for shortness of breath on a de novo basis. 7. THIS IS A COMPEX CASE. The RO/AMC should carefully review the record. After the development requested above has been completed to the extent possible, the RO/AMC should again review the record. With regard to the claims involving headaches, syncope, dizzy spells, and atrial fibrillation, these claims must be considered under all applicable legal theories, to include as related to his Persian Gulf service, and as secondary to any radiogenic thyroid nodule disease. This radiogenic thyroid claim is thus inextricably intertwined with the Persian Gulf illness claims. Therefore, if service connection for headaches, syncope, dizzy spells, and atrial fibrillation cannot be granted under the provisions of 38 C.F.R. § 3.317, then the thyroid claim must be fully developed and adjudicated to include under the provisions of 38 C.F.R. § 3.311, prior to review of the secondary service connection aspect of these claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and 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). This claim 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs