Citation Nr: 21011366 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 16-00 227A DATE: March 1, 2021 REMANDED Entitlement to service connection for headaches, nose bleeds, fatigue, insomnia, joint and muscle pain, rashes, and shortness of breath, to include as symptoms of an undiagnosed illness, is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Marine Corps from July 1990 to August 1990 and from November 1990 to July 1991, to include service in the Southwest Asia theater. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In his September 2013 Notice of Disagreement, the Veteran’s appeal included the issue of service connection for posttraumatic stress disorder (PTSD). See September 2013 Notice of Disagreement. The Veteran was granted service connection for PTSD in a December 2017 VA Rating Decision. See December 2017 VA Rating Decision Narrative. As such, the issue of service connection for PTSD is no longer for appeal. The Veteran testified before the undersigned Veterans Law Judge at a February 2019 hearing. A copy of the transcript has been made a part of the record. The matter was remanded in June 2019 for further development, to include the retrieval of treatment records from Walter Reed Army Medical Center. See June 2019 Board remand. While the Board regrets the added delay, an additional remand is necessary to ensure that due process is followed and a complete record upon which to decide the Veteran’s claim is available so that he is afforded every possible consideration. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for headaches, nose bleeds, fatigue, insomnia, joint and muscle pain, rashes, and shortness of breath, to include as symptoms of an undiagnosed illness, is remanded. The Veteran contends that he has “undiagnosed illnesses due to Gulf War Syndrome,” based on a positive result for mycoplasma bacteria. The Veteran also contends, “[T]here is a strong association between the Gulf War undiagnosed illnesses and the multiple vaccines that were administered.” See January 2016 VA Form 9 “Notice of Disagreement” Correspondence. A Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In the June 2019 remand, the Board instructed the Agency of Original Jurisdiction (AOJ) to, “request records from St. Louis, MO per the response received from Walter Reed in January 2018.” See June 2019 Board remand. The October 2020 Supplemental Statement of the Case (SSOC) does not indicate that evidence from Walter Reed Army Medical Center was considered in the decision for entitlement to service connection by the AOJ. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand order(s). See Stegall v. West, 11 Vet. App. 268 (1998). A January 2018 Medical Treatment Record indicates, “Pls – Ref to St. Louis, MO < only one report found (No further Record found) [sic].” See January 2018 Defense Health Agency Medical Treatment Record (attaching an April 2010 Chronological Record of Medical Care from the 550th Prosperity Clinic). In a December 2019 Report of General Information, a private medical records retrieval request for “Walter Reed Hospital” was rejected, stating “Discovery VAMC / Military / Federal.” See December 2019 VA Form 21-0820, Report of General Information. An additional request for Walter Reed Army Medical Center records was sent in March 2020. While a “negative response” was requested, no further communication is noted in the record. See March 2020 VA Form 10-7131, Request for Administrative and Adjudicative Action. VA’s duty to exist extends to the provision assistance to obtain all “VA medical records or records of examination or treatment at non-VA facilities authorized by VA; and any other relevant records held by any Federal department or agency.” See 38 C.F.R. § 3.159(c)(3). If treatment records from the Walter Reed Army Medical Center were not available, the AOJ should have issued a formal determination that either the treatment records do not exist or that further attempts to obtain treatment records would be futile. In addition, the Veteran should have been notified of the attempts made to obtain the Hospital treatment records and why further attempts to obtain the treatment records would be futile. Finally, the Veteran should have been notified of the opportunity to provide the treatment records to the AOJ. 38 U.S.C. § 5103A(b)(2); 38 C.F.R. § 3.159(e). The Board notes that the Veteran identified Bryans Road Medical Center, Health America, and a private physician in addition to “Walter Reed Hospital” in response to a VA development request for treatment providers. See December 2019 VA Form 21-4142a, General Release for Medical Provider Information. VA will make reasonable efforts to obtain relevant records not in the custody of a Federal department or agency, to include records from State or local governments, private medical care providers, current or former employers, and other non-Federal governmental sources. Such reasonable efforts will generally consist of an initial request for the records and, if the records are not received, at least one follow-up request. See 38 C.F.R. § 3.159(c)(1). A December 2019 Report of General Information reflects that a phone message and fax request were made of Bryans Road Medical Center requesting treatment records for the Veteran. The record also reflects that a negative response was received from the provider, “No Records Found.” See December 2019 VA Form 21-0820, Report of General Information. VA provided Notification Letters to both Health America and Health America / Carefirst Blue Cross Blue Shield requesting the Veteran’s treatment records. See December 2019 VA Notification Letters. In December 2019 Correspondence, a private medical records retrieval request for “Health America” was rejected. The stated reason was, “Provider listed is non-private.” See December 2019 VA Correspondence. A third request for the Veteran’s treatment records was made of Health America in January 2020. See January 2020 Initial Private 3rd Party Letter. In December 2019, VA attempted to contact the Veteran’s private physician. A phone message and fax request were made to request treatment records. See January 2020 VA Form 21-0820, Report of General Information. Two additional phone messages were left for the Veteran’s private physician in December 2019. See January 2020 VA Form 21-0820, Report of General Information. A Notification Letter was mailed in December 2019. See December 2019 VA Notification Letter. A second Notification Letter was mailed in January 2020 requesting treatment records for the Veteran. See January 2020 VA Notification Letter. No response was received from the attempts to contact the Veteran’s private physician. See January 2020 VA Form 21-0820, Report of General Information. The Veteran was notified in December 2019 of the VA request for treatment records from his private physician, Bryans Road Medical Center, and Health America. In addition, VA informed the Veteran that it was his responsibility to see that VA receives non-VA, non-military, or other non-federal government agency records. See December 2019 VA Notification Letter. The Veteran provided correspondence in January 2020 that stated, “[I]t is important to note that the Veterans Administration has received most of these records in the past and are referenced in my VA documents. The records that remain missing are those from Walter Reed Hospital.” See January 2020 VA Form 21-4138, Statement in Support of Claim. Finally, regarding the June 2019 Board remand instruction, “Records should be obtained for the Veteran from VA Cooperative Study # 475, ‘The Antibiotic Treatment Trial of Gulf War Veteran’s Illness,’” the published study can be found at the following link: https://www.acpjournals.org/doi/full/10.7326/0003-4819-141-2-200407200-00006. See June 2019 Board remand. While the Veteran’s Volunteer Agreement states, “Department of Veterans Affairs (study sponsor),” See June 1999 DA Form 5303-R, Volunteer Agreement Affidavit, the study was conducted and published by a team of 10 researchers from across the country, including RAND Corporation, Dartmouth College, University of South Carolina, University of Texas, Rutgers University, and the University of New Mexico. See Donta, S.T., et al., 2004. Benefits and harms of doxycycline treatment for Gulf War veterans’ illnesses: a randomized, double-blind, placebo-controlled trial. Ann Intern Med. 141, 85 – 94. Further, the purpose of the study, as stated in the Veteran’s Volunteer Agreement, “Some experts believe that at least some of the Gulf War Veterans’ illnesses are caused by an infection (bacteria called mycoplasma); [i]f this belief is correct, then (doxycycline) antibiotic treatment should provide benefit to some patients with Gulf War Veterans’ illnesses,” has no probative value on the issue of service connection for Gulf War-related illnesses or the Veteran’s claim. See June 1999 DA Form 5303-R, Volunteer Agreement Affidavit. Moreover, according to the results of the study, “Doxycycline treatment has no effect on the health of symptomatic Gulf War Veterans,” regardless of whether the Veteran tested positive for the mycoplasma bacteria. See February 2012 VA War-Related Illness and Injury Study Center (WSIISC) Outpatient Note. The Board finds that the evidence raises no reasonable possibility that it would assist the Veteran in substantiating a claim for headaches, nose bleeds, fatigue, insomnia, joint and muscle pain, rashes, and shortness of breath, to include as symptoms of an undiagnosed illness. See 38 C.F.R. § 3.159(d); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). The matter must again be remanded in order to ensure compliance with the Board’s previous orders. The matter is REMANDED for the following actions: 1. Obtain and associate with the Veteran’s electronic claims file any outstanding VA and non-VA treatment records relevant to his claim, specifically to include treatment records from Walter Reed Army Medical Center. 2. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be expressly documented in the Veteran’s claim file. The Veteran must be notified of the attempts made to obtain the records, why further attempts to obtain the records would be futile, and allowed the opportunity to produce such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. Thereafter, readjudicate the issue on appeal. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response before the case is returned to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.