Citation Nr: 20023904 Decision Date: 04/07/20 Archive Date: 04/07/20 DOCKET NO. 16-05 811A DATE: April 7, 2020 REMANDED Entitlement to service connection for bilateral pes planus is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for a claimed disability manifested by headaches is remanded. Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to service connection for a sleep disorder, to include insomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty from December 1990 to May 1991 with additional periods of service in the Army National Guard. This case comes to the Board of Veterans’ Appeals (Board) from a July 2014 decision of the Agency of Original Jurisdiction (AOJ). In its decision, the AOJ denied claims for all of the benefits listed above. The AOJ’s decision and subsequent statement of the case (SOC) described the Veteran’s claims as eleven separate issues. With two exceptions, the Board has used the same terms to describe the Veteran’s claims. First, the AOJ described separate claims for service connection for depression and service connection for anger. Instead of continuing to treat these as separate issues, the Board will describe them as a single claim for service connection for any acquired psychiatric disorder which may be related to service. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Also pursuant to Clemons, the Board has described the Veteran’s insomnia claim more broadly as a claim for service connection for any chronic sleep disorder. Although the Board regrets the need for additional delay, further development is needed before it can decide the claims in this appeal. To help establish his claim, the Veteran submitted written authorizations for the AOJ to obtain copies of his treatment records from five separate medical providers in private practice. It appears that the AOJ successfully obtained records from four of them. But it is unclear whether the AOJ requested records from Dr. Stephen Hammack. The Veteran authorized the release of records from this physician in May 2014. His authorization refers to “general medical” records of treatment which, according to the Veteran, took place between 2010 and 2012. Another statement from the Veteran suggests that Dr. Hammack took over the practice of the Veteran’s former physician Dr. Stanley Hartness after the latter’s retirement and that both physicians were affiliated with Kosciusko Medical Clinic. The AOJ received some records in response an earlier request to Dr. Hartness’s office, but none of these records mention Dr. Hammack and none of them concern treatment that took place between 2010 and 2012. Under these circumstances, it is not clear that further efforts to obtain the missing records from Dr. Hammack would be futile. And because the Veteran referred to Dr. Hammack’s records broadly as “general medical” records, the missing records could potentially be relevant to any of the claims in this appeal. For these reasons, the Board will remand all the issues with instructions to make new efforts to obtain the missing records from Dr. Hammack. The AOJ should also obtain complete copies of the Veteran’s service personnel records. In a December 2013 statement, he described himself as, “a [Veteran] of Operation Desert Storm / Shield 1990-91.” He also wrote that his psychiatric, knee, and lower back disabilities, as well as his erectile dysfunction, began in 1991. The record includes one Certificate of Discharge from Active Duty (Form DD-214) which confirms that he was ordered to active duty in support of Operations Desert Storm and Desert Shield in 1990. But it is unclear whether he was actually deployed to Southwest Asia at any point during this period of service. If he was, then he could potentially be eligible for compensation for some of his claimed disabilities even without a specific diagnosis and even without evidence that he initially incurred the claimed disability in service. See 38 C.F.R. § 3.317. Finally, the AOJ should attempt to verify the lengths and durations of all periods of the Veteran’s National Guard and Reserve service. According to a June 2014 VA examination report, the Veteran said that he served in the National Guard from 1976 to 1997. The AOJ requested service treatment records using the Personnel Information Exchange System (PIES) but the AOJ’s instructions to the National Personnel Records Center (NPRC) indicated to them that the Veteran’s only potentially relevant period of service was December 1990 to May 1991. In December 2013, the AOJ attempted to use the PIES system to verify a subsequent statement from the Veteran indicating that he had been on active duty between December 1990 and May 1997. But the response to this request (“Service has been modified as indicated”) suggests that the person responding misconstrued the AOJ’s request, treating it not as a question – i.e., “Can you tell us whether he was really on active duty until 1997?” – but as an instruction to correct an alleged error in the recorded dates of his active duty service. In any event, it appears that the AOJ never attempted to verify the dates and durations of the periods of Active Duty for Training (ACDUTRA) or Inactive Duty for Training (INACDUTRA) in which the Veteran participated during his service with the National Guard.   The matters are REMANDED for the following action: 1. The AOJ should make reasonable efforts to obtain complete copies of the Veteran’s service personnel records. The AOJ should also attempt to verify the dates and durations of any periods of ACDUTRA or INACDUTRA. These efforts should include new appropriate requests using the PIES system and, if that request is not successful, then reasonable follow-up methods, including appropriate information requests to the Defense Finance and Accounting Service (DFAS), electronic mail follow-up to the VA Liaison Office at the National Personnel Records Center (NPRC), and contact with the Veteran's duty station at the time of his final separation from service. 2. The AOJ should contact the Veteran and ask him to provide a written authorization for VA to obtain copies of any outstanding private treatment records which may be relevant to his claims, including records from Dr. Stephen Hammack and/or Kosciusko Medical Clinic. Advise the Veteran that the authorization he provided to obtain records from Dr. Hammack in May 2014 has expired. Please also explain to him that the VA has received his correspondence indicating that Dr. Hammack took over the practice of Dr. Hartness. But he should be informed that Dr. Hartness’s office responded to a records request without providing any records from Dr. Hammack and without providing any records from 2010-2012 (the years the Veteran received treatment from Dr. Hammack, according to his written authorization). For each records request authorized by the Veteran, the AOJ should continue to attempt to obtain the records until the records are obtained or until it is reasonably certain that further attempts to obtain them would be futile. 3. The AOJ should review the information obtained as a result of the development required by parts one and two of these instructions. If the personnel or reserve records confirm that the Veteran served in Southwest Asia between 1990 and 1991, then the AOJ should consider the possibility of arranging new medical examinations to determine whether any of the Veteran’s claimed disabilities are attributable to undiagnosed illness or medically unexplained multi-symptom illness for the purposes of 38 C.F.R. § 3.117. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Nye, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.