Citation Nr: 1609799 Decision Date: 03/10/16 Archive Date: 03/22/16 DOCKET NO. 12-33 520 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for headaches, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for cephalgia. 2. Entitlement to service connection for a gastrointestinal disability, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for irritable bowel syndrome (IBS), diverticulosis and diarrhea. 3. Entitlement to service connection for respiratory infections, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for pulmonary hypertension and chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for bilateral conjunctivitis. 5. Entitlement to service connection for fatigue, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for chronic fatigue syndrome (CFS) and fibromyalgia. 6. Entitlement to service connection for muscle and joint pain, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for degenerative disc disease, degenerative arthritis, and gouty arthritis of various joints to include the hips, knees, cervical spine, lumbar spine and shoulders. 7. Entitlement to service connection for a gastroesophageal disorder, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for gastroesophageal reflux disease (GERD). 8. Entitlement to service connection for neurological symptoms, including as due to an undiagnosed illness or medically unexplained multisymptom illness, also characterized as a claim for service connection for peripheral neuropathy. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran had active service in the Army from April 1956 to April 1959, and from September 1990 to May 1991. The latter period of active duty included service in the Southwest Asia Theater of Operations. He also had several periods of active duty for training with the Army National Guard. This appeal comes before the Board of Veterans' Appeals (Board) from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Jurisdiction over the case was subsequently transferred to the RO in St. Petersburg, Florida. The Board remanded this case in June 2013, June 2014, and March 2015 for additional development. The case has now been returned to the Board for further appellate action. The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). REMAND While additional delay is unfortunate, the Board finds further development is required before the Veteran's claims are decided. Initially, the Board notes that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). When this case was previously before the Board in March 2015, the RO or Appeals Management Center in Washington D.C. (AMC) was instructed to contact various VA Medical Centers (VAMCs) to determine whether additional outpatient treatment records existed. Specifically, the RO or AMC was ordered to contact the Saginaw, Detroit, Tampa and Ann Arbor VAMCs to determine whether records existed, which were not previously requested. Relative to the Saginaw VAMC, the Board instructed the RO or AMC to contact that facility to determine whether records existed for the period between 1995 and 2012. The RO or AMC was instructed to contact the Detroit VAMC to determine whether records existed for the period between October 2002 and November 2013. In relation to the Tampa VAMC, the RO or AMC was instructed to initiate development with that facility to determine whether records existed from 2003 to 2012. Finally, the RO or AMC was instructed to initiate development with the Ann Arbor VAMC to determine whether additional records for the period of 1991 to 1998 were available. Following these clear directives, the AMC merely performed a perfunctory review of the available electronic records in the Compensation and Pension Records Interchange (CAPRI). A cursory review of CAPRI records does not substantially comply with the prior Board remands. In this regard, the Board notes the RO or AMC was clearly advised that all appropriate development should be effectuated to determine whether such records existed. Pursuant to M21-1 Part III, Subpart iii, Chapter 1, Section C.4.a, when relevant treatment is alleged at a VA facility, ROs must attempt to obtain the records, unless the RO concludes that it is reasonably certain the records do not exist. This manual excerpt specifically instructs the ROs that when no records are found in either CAPRI or the Advanced Web Image Viewer (AWIV), the RO must then determine whether the records exist, but are inaccessible through CAPRI or AWIV, or it is reasonably certain the records do not exist. In order to effectuate this duty, the manual instructs the RO to initiate development to the VAMCs via a VA Form 10-7131, Exchange of Beneficiary Information and Request for Administrative Action. If the records are found to be unavailable, the RO is instructed to prepare a formal finding of unavailability for the record, and notify the Veteran in accordance with 38 C.F.R. § 3.159(e). The record does not indicate the above procedures were followed, and as such, the Board finds this case requires additional development as the above-noted records, if available, may be relevant to the Veteran's claims. Accordingly, the case is REMANDED to the RO or the AMC for the following actions: 1. Undertake appropriate development to obtain all outstanding VA and private medical records pertaining to post-service treatment of any of the disabilities at issue from the date of the Veteran's separation from service to the present. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified. 2. The RO or AMC should also undertake any other development it determines to be warranted, to include an assessment as to whether addendum opinions are warranted for any of the VA examinations conducted in order to substantially comply with the Board's June 2013 remand. 3. Then, the RO or AMC should readjudicate the issues on appeal. If the benefits sought are not granted to the Veteran's satisfaction, the RO or AMC should furnish to the Veteran and his representative a supplemental statement of the case. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action unless he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) As noted above this case has been advanced on the Board's docket. It must also be handled in an expeditious manner by the RO. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).