Citation Nr: 9913277	
Decision Date: 05/14/99    Archive Date: 05/21/99

DOCKET NO.  98-12 542	)	DATE
	)
	)

Received from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for cardiovascular 
disability, including heart disease and hypertension.

2.  Entitlement to service connection for heart disease due 
to undiagnosed illness.

3.  Entitlement to service connection for hypertension due to 
undiagnosed illness.

4.  Entitlement to service connection for a cardiovascular 
disorder, other than heart disease and hypertension, due to 
undiagnosed illness.  

5.  Entitlement to service connection for sore joints.

6.  Entitlement to service connection for sore joints due to 
undiagnosed illness.

7.  Entitlement to service connection for sore muscles due to 
undiagnosed illness.

8.  Entitlement to service connection for sleep apnea.

9.  Entitlement to service connection for sleep apnea due 
undiagnosed illness.

10.  Entitlement to service connection for a sleep disorder 
other than sleep apnea.

11.  Entitlement to service connection for a sleep disorder, 
other than sleep apnea, due to undiagnosed illness.

12.  Entitlement to service connection for gastroesophageal 
reflux disease (GERD).

13.  Entitlement to service connection for GERD due to an 
undiagnosed illness.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Mark E. Goodson, Associate Counsel 


INTRODUCTION

The veteran served on active duty from June 17, 1968, to July 
31, 1991.  He also had one year, one month, and one day of 
active duty prior that period.  His DD-214 reflects that he 
served in South West Asia during the Persian Gulf War (Gulf 
War).

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal in a manner that warrants some explanation.  In 
January 1994, the veteran submitted claims of entitlement to 
service connection for coronary artery disease, hypertension, 
sore muscles, and sore joints, claimed as due to "Desert 
Storm Syndrome."  In December 1994, the RO in Atlanta, 
Georgia (Atlanta RO) denied those claims.  The Atlanta RO 
addressed his claims in terms of "direct" service 
connection, see, e.g., 38 U.S.C.A. §§ 1110, 1131 (West 1991) 
and 38 C.F.R. § 3.303 (1998) without addressing Public Law 
103-446, codified at 38 U.S.C.A. § 1117, which became 
effective November 2, 1994.  See Combee v. Brown, 34 F.3d 
1039 (Fed.Cir. 1994).  (Title 38 U.S.C.A. Section 1117 
provides a basis for the Secretary of VA (Secretary) to award 
compensation to veterans who served in South West Asia during 
the Gulf War, for disability resulting from an undiagnosed 
illness or combination of such illnesses.  The Secretary has 
promulgated a regulation, effective November 2, 1994, to 
effectuate that statute.  See 38 C.F.R. § 3.317 (1998).)  The 
Atlanta RO notified the veteran of its decision by a letter 
dated January 10, 1995.  On February 14, 1995, the Atlanta RO 
received a copy of a letter from the veteran to his senator, 
in which the veteran mentioned that he had received a notice 
from the RO that his "Desert Storm Syndrome" claim had been 
denied, and that he would appeal that decision.  He also 
mentioned that he had returned from the Gulf War with 
problems including sore muscles and joints, and heart 
disease.  On February 23, 1995, the veteran submitted a 
letter to the Atlanta RO in which he noted the denial of his 
claim and requested a review of the "prior findings" with 
respect to his "medical problems," including joint pain, 
high blood pressure, and heart disease.  (The February 1995 
letters from the veteran to his Senator and to the RO are 
hereinafter collectively referred to as the February 1995 
letters.)  In this context, the Board construes the February 
23, 1995 letter as a notice of disagreement (NOD) with all 
denials reflected in the December 1994 decision.  As 
explained below, most, but not all of these matters, were 
later developed for appellate review.  See June 1998 
statement of the case (SOC) and July 1998 VA Form 9 (Appeal 
to the Board of Veterans' Appeals).  

The February 1995 letters also served as claims of service 
connection for muscle pain, joint pain, heart disease, and 
hypertension, pursuant to 38 U.S.C.A. § 1117.  These 
constituted new claims, distinctly different from the 
"direct" service connection claims denied by the Atlanta RO 
in December 1994.  See Routen v. West, 142 F.3d 1434, 1441-42 
(Fed. Cir. 1998), cert. den. 119 S.Ct. 404 (1998).  (Such 
claims may hereinafter be referred to as Gulf War undiagnosed 
illness claims.)  Also, because the February 1995 letters 
also mentioned that the veteran experienced ulcers, 
anxiety/depression, eyelid lesions, and eyeball lesions, the 
February 1995 letters constituted claims of service 
connection for those disabilities as well (on both a direct 
basis and on the basis of 38 U.S.C.A. § 1117).  Thereafter, 
the veteran submitted informal Gulf War undiagnosed illness 
claims of service connection for skin, sleep, and 
gastrointestinal disorders, as reflected by a June 1995 
letter from the veteran to a private physician, Gene Howard, 
M.D.

In May 1998, the RO in Columbia, South Carolina (Columbia RO) 
entered a rating decision which granted direct service 
connection for actinic keratosis (a skin disorder producing 
lesions on the veteran's eyelid).  The rating decision also 
denied service connection for muscle pain, joint pain, 
"sleep disturbance/sleep apnea," GERD, cardiovascular signs 
and symptoms, and anxiety and depression.  With the exception 
of the question of service connection for muscle pain, the 
rating decision addressed each of those disorders in terms of 
both direct service connection and service connection 
pursuant to 38 C.F.R. § 3.317 (Gulf War undiagnosed illness).  
The rating decision discussed muscle pain only in terms of 
Gulf War undiagnosed illness.  Later in May 1998, the RO 
furnished the veteran with a copy of the rating decision.

In June 1998, the veteran submitted a NOD with the denial of 
service connection for sore muscles, sore joints, 
cardiovascular signs (which the Board construes to include 
heart disease and hypertension given the procedural posture 
of the case and the treatment of the matter in the May 1998 
NOD and June 1998 SOC), a sleep disorder, and 
gastrointestinal symptoms (which the Board construes to 
include GERD).  The NOD did not mention the denial of service 
connection for anxiety with depression.  Later in June 1998, 
the Columbia RO issued a SOC, which addressed service 
connection for muscle pain, joint pain, sleep disturbance 
(including sleep apnea), GERD, and cardiovascular signs and 
symptoms.  With the exception of the question of service 
connection for muscle pain, the SOC addressed each of those 
disorders in terms of both direct service connection and 
service connection pursuant to 38 C.F.R. § 3.317.  The SOC 
discussed muscle pain only in terms of Gulf War undiagnosed 
illness.  The SOC also addressed service connection for 
anxiety and depression, notwithstanding that no NOD had been 
filed with respect to any mental disorder at that time.  In 
July 1998, the veteran submitted a VA Form 9, which perfected 
his appeals of the denial of service connection for sore 
joints and cardiovascular disability (including heart disease 
and hypertension), on both a direct basis and the basis of 
38 C.F.R. § 3.317.  The July 1998 Form 9 also perfected the 
veteran's appeal of the denial of service connection for sore 
muscles on a direct basis, as initiated by his February 1995 
NOD.  See 38 U.S.C.A. §§ 7104, 7105 (West 1991 & Supp. 1998).

However, the July 1998 SOC did not address the sore muscle 
matter in terms of an undiagnosed illness.  There is no other 
SOC or supplemental SOC (SSOC) of record which could confer 
jurisdiction of this matter on the Board.  38 U.S.C.A. 
§§ 7104, 7105 supra; 38 C.F.R. §§ 20.200 et. seq; see Routen 
supra.  Thus, this matter is referred to the RO for prompt 
issuance of a SOC. 

The Board notes that the veteran's July 1998 VA Form 9 
expressed disagreement with the denial of service connection 
for an anxiety disorder (including, by inference from the 
record, associated depression).  The Board construes this as 
a NOD with respect to the May 1998 denial of service 
connection for anxiety and depression (apparently claimed on 
both a direct basis and pursuant to 38 C.F.R. § 3.317, see 
February 1995 NOD).  The RO has not issued a SOC therefor; 
the June 1998 SOC was issued before the veteran submitted his 
NOD (Form 9) in July 1998.  Thus, the Board has no 
jurisdiction over this matter.  See 38 U.S.C.A. §§ 7104, 7105 
supra.  Accordingly, this matter is also referred to the RO 
for prompt issuance of a SOC.  

The Board notes that, in January 1995, the veteran submitted 
a claim of entitlement to service connection for a stomach 
ulcer, claimed as a Gulf War undiagnosed illness.  In his 
June 1995 claim, he sought service connection for 
gastrointestinal disability, also claimed as a Gulf War 
undiagnosed illness.  However, the RO has not adjudicated 
either of these claims.  Instead, the RO's May 1998 rating 
decision and June 1998 SOC unilaterally characterized the 
issue as entitlement to service connection for GERD, without 
addressing ulcers or gastrointestinal disorder(s) generally.  
These matters are referred to the RO for appropriate action.

The Board also notes that the RO has not adjudicated the 
veteran's January 1995 claim of entitlement to service 
connection for a lesion of the eye, claimed as due to an 
undiagnosed illness.  Additionally, the veteran's July 1998 
VA Form 9 raises a claim of entitlement to an increased 
rating for mechanical low back pain, which the RO has not 
addressed.  These matters are also referred to the RO for 
appropriate action. 

(Consideration of the issues numbered 1, 5, 6, 7, and 12 
above will be deferred pending completion of the development 
sought in the remand below.)


FINDINGS OF FACT

1.  The veteran does not have sleep apnea.

2.  The veteran does not have a sleep disorder.

3.  There is no competent evidence showing that the veteran 
has a chronic heart disease disability resulting from an 
illness or illnesses manifested by signs or symptoms such as 
those listed in 38 C.F.R. § 3.317(b), and in any event, 
coronary artery disease is not an undiagnosed illness within 
the purview of 38 C.F.R. § 3.317.  

4.  There is no competent evidence showing that the veteran 
has a chronic hypertension resulting from an undiagnosed 
illness or illnesses manifested by signs or symptoms such as 
those listed in 38 C.F.R. § 3.317(b), and in any event, 
hypertension is not an undiagnosed illness within the purview 
of 38 C.F.R. § 3.317.

5.  There is no competent evidence showing that the veteran 
has a chronic sleep apnea resulting from an undiagnosed 
illness or illnesses manifested by signs or symptoms such as 
those listed in 38 C.F.R. § 3.317(b), and in any event, sleep 
apnea is not an undiagnosed illness within the purview of 
38 C.F.R. § 3.317.

6.  There is no competent evidence showing that the veteran 
has a chronic cardiovascular disability (exclusive of 
coronary artery disease and hypertension) resulting from an 
undiagnosed illness or illnesses manifested by signs or 
symptoms such as those listed in 38 C.F.R. § 3.317(b).

7.  There is no competent evidence showing that the veteran 
has a chronic sleep disability (exclusive of sleep apnea) 
resulting from an undiagnosed illness or illnesses manifested 
by signs or symptoms such as those listed in 38 C.F.R. 
§ 3.317(b).

8.  There is no competent evidence showing that the veteran 
has GERD resulting from an illness or undiagnosed illnesses 
manifested by signs or symptoms such as those listed in 
38 C.F.R. § 3.317(b).


CONCLUSIONS OF LAW

1.  The veteran's claim of entitlement to service connection 
for sleep apnea is not well grounded.  38 U.S.C.A. §§ 1101, 
1110, 1112, 1131, 5107 (West 1991); 38 C.F.R. §§ 3.303, 
3.306, 3.307, 3.309, 3.310 (1998).

2.  The veteran's claim of entitlement to service connection 
for a sleep disorder other than sleep apnea is not well 
grounded.  38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5107 (West 
1991); 38 C.F.R. §§ 3.303, 3.306, 3.307, 3.309, 3.310 (1998).

3.  The veteran's claim of entitlement to service connection 
for heart disease due to an undiagnosed illness is not well 
grounded.  38 U.S.C.A. §§ 1117, 5107 (West 1991 & Supp. 
1998); 38 C.F.R. § 3.317 (1998).

4.  The veteran's claim of entitlement to service connection 
for hypertension due to an undiagnosed illness is not well 
grounded.  38 U.S.C.A. §§ 1117, 5107 (West 1991 & Supp. 
1998); 38 C.F.R. § 3.317 (1998). 

5.  The veteran's claim of entitlement to service connection 
for sleep apnea due to an undiagnosed illness is not well 
grounded.  38 U.S.C.A. §§ 1117, 5107 (West 1991 & Supp. 
1998); 38 C.F.R. § 3.317 (1998).  

6.  The veteran's claim of entitlement to service connection 
for cardiovascular disability (other than coronary artery 
disease and hypertension) due to an undiagnosed illness is 
not well grounded.  38 U.S.C.A. §§ 1117, 5107 (West 1991 & 
Supp. 1998); 38 C.F.R. § 3.317 (1998).  

7.  The veteran's claim of entitlement to service connection 
for sleep disability (other than sleep apnea) due to an 
undiagnosed illness is not well grounded.  38 U.S.C.A. 
§§ 1117, 5107 (West 1991 & Supp. 1998); 38 C.F.R. § 3.317 
(1998). 

8.  The veteran's claim of entitlement to service connection 
for GERD
due to an undiagnosed illness is not well grounded.  
38 U.S.C.A. §§ 1117, 5107 (West 1991 & Supp. 1998); 38 C.F.R. 
§ 3.317 (1998). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The threshold question to be answered is whether the 
veteran's claims are well grounded.  See 38 U.S.C.A. § 5107 
(West 1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  A 
well-grounded claim is defined as a "plausible claim, one 
which is meritorious on its own or capable of 
substantiation."  Murphy v. Derwinski, 1 Vet. App. 78, 81 
(1990).  Section 5107 provides that the claimant's submission 
of a well-grounded claim gives rise to VA's duty to assist 
and to adjudicate the claim.  In short, VA is not required to 
adjudicate a claim on the merits until after the veteran has 
met this initial burden of submitting a well-grounded one.  
Boeck v. Brown, 6 Vet. App. 14 (1993).

"Although the claim need not be conclusive, the statute 
[§ 5107] provides that [the claim] must be accompanied by 
evidence" in order to be considered well grounded.  Tirpak 
v. Derwinski, 2 Vet. App. 609, 611 (1992).  In the context of 
a claim of entitlement to service connection, this generally 
means that evidence must be presented which in some fashion 
links a current disability to a period of military service or 
to an already service connected disability.  38 U.S.C.A. 
§§ 1110, 1131 (West 1991); 38 C.F.R. §§ 3.303, 3.310 (1998); 
Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  Evidence 
submitted in support of the claim is presumed to be true for 
purposes of determining whether the claim is well grounded.  
King v. Brown, 5 Vet. App. 19, 21 (1993).  However, lay 
assertions of medical diagnosis or causation do not 
constitute competent evidence sufficient to render a claim 
well grounded.  Grottveit v. Brown, 5 Vet. App. 91, 93 
(1992); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).

In short, in order to establish a well-grounded service 
connection claim, the claimant must produce (1) medical 
evidence of a current disability; (2) lay or medical evidence 
that a disease or injury was incurred or aggravated in 
service; and (3) medical evidence of a link, or nexus, 
between the current disability and the in-service disease or 
injury.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 
78 F.3d 604 (Fed. Cir. 1996) (Table); accord, Epps v. Gober, 
126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. den. sub nom. 
Epps v. West, 118 S.Ct. 2348 (1998).  This third element may 
be established by the use of certain statutory presumptions.  
Caluza, supra.  For example, if competent evidence reflects 
that certain diseases, including hypertension, manifest to a 
compensable degree within one year after service, then there 
is no need for additional medical evidence attributing such 
disease(s) to in-service incurrence or aggravation.  
38 U.S.C.A. § 1112 (West 1991 & Supp. 1998); 38 C.F.R. 
§§ 3.307, 3.309 (1998).  


Sleep apnea and
a sleep disorder other than sleep apnea:
theories other than Gulf War undiagnosed illness

In the present case, there is no medical evidence that the 
veteran has a sleep disorder, whether diagnosed as sleep 
apnea or otherwise.  An April 1995 letter from Arnold J. 
Tillinger, M.D. (a private psychiatrist) reflects a notation 
of the veteran's complaints of awakening once or twice a 
week, without returning to sleep, but Dr. Tillinger did not 
cast this complaint into a diagnosis of a sleep disorder 
(although the symptom apparently was encompassed by his 
diagnosis of an anxiety disorder).  The veteran's statements 
in this regard are not competent evidence, because he is not 
shown to have the training, background, or expertise to 
render a self-diagnosis.  Thus, there is no competent 
evidence of a sleep disability for which service connection 
may be granted on a direct basis (or any other basis 
exclusive of 38 C.F.R. § 3.317, see 38 C.F.R. §§ 3.306, 
3.307, 3.309, 3.310, Savage v. Gober, 10 Vet. App. 489, 494-
95, 497 (1997) and Allen v. Brown, 7 Vet. App. 439 (1995)).  
See Epps, supra; Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997), Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  
Accordingly, these claims are not well-grounded, and VA has 
no duty to assist the veteran, pursuant to 38 U.S.C.A. 
§ 5107, in the development of the facts pertinent to those 
claims.

Although the veteran indicated in an October 1996 letter that 
he had been diagnosed as having sleep apnea by a Dr. Charles 
Scott, the mere diagnosis of sleep apnea is insufficient to 
well ground the veteran's claim, because assuming arguendo 
that the Board were to concede that the veteran had sleep 
apnea, the record still lacks any evidence or allegation that 
some medical authority has opined that such sleep apnea is 
related to the veteran's military service or to a service-
connected disability.  See also October 1997 VA mental 
examination report, noting veteran's report of sleep study 
showing sleep apnea.  In the absence of such nexus evidence, 
the veteran's claim would remain not well grounded.  
Therefore, a remand to inform the veteran of the need to 
submit Dr. Scott's records would be pointless.  See Elkins v. 
West, 12 Vet. App. 209 (1999); cf. Robinette v. Brown, 8 Vet. 
App. 69 (1995). 

Heart disease, hypertension, a cardiovascular disorder
other than heart disease and hypertension, sleep apnea, a 
sleep
disorder other than sleep apnea, and GERD:  Gulf War 
undiagnosed illness theory

The veteran contends that he is entitled to service 
connection for various disabilities pursuant to 38 C.F.R. 
§ 3.317.  That regulation provides, in relevant part, that 
except as provided otherwise, VA shall pay compensation in 
accordance with chapter 11 of Title 38, United States Code, 
to a Persian Gulf veteran who exhibits "objective 
indications of chronic disability resulting from an illness 
or combination of illnesses" manifested by one or more signs 
or symptoms, such as sleep disturbances, cardiovascular signs 
and symptoms, and other symptoms, provided that such 
disability (i) became manifest either during active duty in 
the South West Asia theater of operations during the Gulf 
War, or to a compensable degree no later than December 31, 
2001, and (ii) by history, physical examination, and 
laboratory tests cannot be attributed to any known clinical 
diagnosis.  38 C.F.R. § 3.317(a)(1) (1998).  "Objective 
indications of 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)(2) (1998).  Disabilities that have existed for at 
least 6 months, and disabilities that exhibit intermittent 
episodes of improvement and worsening over a 6-month period 
will be considered "chronic."  Id.  Thus, lay statements, 
such as a veteran's testimony, might constitute "non-medical 
indicators" sufficient to well ground a claim asserted 
pursuant to 38 C.F.R. § 3.317, so long as there is also 
evidence adduced which "plausibly" shows that the 
disability in question is "chronic" and "capable of 
independent verification."  Id.; see 38 U.S.C.A. § 5107 
(West 1991); Murphy, supra. 

Here, the veteran's claims of entitlement to service 
connection for hypertension, sleep apnea, and heart disease 
are clearly diagnosed disease entities, see, e.g., 38 C.F.R. 
Part IV, Diagnostic Codes 7005 (coronary artery disease), 
7101 (hypertension), and 6847 (sleep apnea syndromes), and 
thus fall outside the purview of either 38 C.F.R. § 3.317 or 
38 U.S.C.A. § 1117.  By definition, this theory of 
entitlement to service connection only applies to undiagnosed 
illnesses, so his Gulf War undiagnosed illness claims for 
these disabilities are not plausible.  Therefore, the 
veteran's claims for hypertension, heart disease, and sleep 
apnea are not well-grounded on this basis. 

Furthermore, with respect to all of the claimed disabilities, 
there must also be a "plausible" showing that such 
objective indications of chronic disability "result from" 
an illness or combination of illnesses.  38 U.S.C.A. 
§ 1117(a); 38 C.F.R. § 3.317(a)(1); see Murphy, supra.  In 
this regard, the Board notes that, notwithstanding that 
38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 provide that lay 
statements, such as a veteran's testimony, are competent to 
establish the existence of "disability," neither the 
statute nor the regulation indicates what type of evidence is 
needed to show that such disability "results from" an 
undiagnosed illness.  The Board is of the opinion that, in 
this case, only medical evidence is competent to show such a 
causal connection sufficient to well ground a Gulf War 
undiagnosed illness claim, for the following reasons.  First, 
the legislative history of the Title 38 U.S.C.A. § 1117 
indicates that the statute was intended to alleviate only the 
Gulf War veteran's burden of having to establish a current 
"disability," given that there might be no diagnosis for 
the symptomatology experienced by such a veteran.  See 104 
CONG. REC. S15011-13 (daily ed. Oct. 8, 1994) (joint 
explanatory statement of H.R. 4386, revised as clean bill 
H.R. 5244); 104 CONG. REC. H11349-50 (daily ed. Oct. 7, 1994) 
(statement of Rep. Montgomery); 104 CONG REC. S9940-41 (daily 
ed. July 27, 1994) (statement of Sen. Rockefeller)  The 
statute was clearly not intended to provide service 
connection claimants with the missing element of a medical 
nexus, see Epps, supra, as do statutes which provide a nexus 
for veterans who claim that they have certain disorders due 
to exposure to radiation, herbicides, and "chronic 
disease."  See 38 U.S.C.A. § 1112 (West 1991 & Supp. 1998).  
That is evident because, in September 1994, a proposal such 
as found in § 1112 was ultimately rejected by Congress.  The 
Senate proposed a version of 38 U.S.C.A. § 1117 which would 
have allowed for a statute similar to 38 U.S.C.A. § 1112 (to 
be codified at 38 U.S.C.A. § 1112A), in which certain 
symptoms would have been presumptively linked to service in 
South West Asia in the manner that certain cancers and other 
disorders have been statutorily linked to service in the 
Republic of Vietnam.  S.R. 2330, 103rd Cong. (1994); and cf. 
S.R. 2178, 103rd Cong. (1994) with H.R. 5244 and 4386, 103rd 
Cong. (1994).  Instead, in the compromise bill that was 
ultimately enacted (H.R. 5244, a clean bill of H.R. 4386), 
Congress chose only to relieve veterans of the need to 
provide medical evidence of a current disability.  Id.  Thus, 
the legislative history of 38 U.S.C.A. § 1117 does not 
suggest that the statute relieves a veteran of the need to 
produce plausible, competent evidence of a causal link 
between a current disability and some undiagnosed illness or 
combination of illnesses (or other link to military service).  
In other words, Congress chose not to enact a nexus-providing 
presumption.  This conclusion is supported by the notice and 
comments for the implementing regulation, which employ the 
same language ("resulting from") in 38 C.F.R. § 3.317(a) as 
the language found in the statute.  See 60 Fed.Reg. 6661, 63 
(Feb. 1995); 59 Fed.Reg. 63283 (Dec. 1994); VAOPGCPREC 4-99 
(May 3, 1999).  

Secondly, case law of the United States Court of Appeals for 
Veterans Claims (known as the United States Court of Veterans 
Appeals prior to March 1, 1999) (Court) indicates that, where 
a question of etiology arises in a service connection claim, 
generally, only medical evidence is competent to address such 
questions.  See, e.g., Caluza, supra; Grottveit v. Brown, 
5 Vet. App. 91, 93 (1993); accord, Epps, supra; cf. Falzone 
v. Brown, 8 Vet. App. 398 (1995); see also Savage v. Gober, 
10 Vet. App. 489, 494-95, 497 (1997).  Unlike the situation 
in Epps and Savage, where 38 C.F.R. § 3.303 indicates that 
medical nexus evidence is generally needed to link a current 
disability with a disease or injury incurred or aggravated in 
service, or with complaints of continuity of symptomatology 
since service, 38 C.F.R. § 3.317(a) indicates that competent 
evidence is needed to link a current disability with an 
undiagnosed illness.  Given that evidence of such a link is 
needed to well ground a claim asserted pursuant to 38 C.F.R. 
§ 3.317, the above-referenced cases indicate that only 
medical or scientific evidence is competent to show this in 
the case of a particular veteran.  In short, notwithstanding 
that 38 U.S.C.A. § 1117 relieves the veteran of the need to 
present medical evidence of a current diagnosis, nothing in 
the statute, its legislative history, or its corresponding 
regulation (38 C.F.R. § 3.317) relieves a veteran of the 
burden of having to submit competent (generally medical) 
evidence which addresses the etiology of the disability in 
question.  VAOPGCPREC 4-99.  

In the present case, there is no medical evidence which tends 
to link any sleep disability (including sleep apnea), 
cardiovascular disability (including heart disease or 
hypertension), or GERD with an undiagnosed illness or 
combination of undiagnosed illnesses.  Therefore, there is no 
"plausible" evidence regarding the etiology of the claimed 
sleep disabilities, cardiovascular disabilities, or GERD.  In 
reaching this conclusion, the Board carefully considered the 
April 1995 letter from Dr. Tillinger and the June 1995 VA 
general examination report because these items address the 
etiology of certain disabilities while noting the veteran's 
service in South West Asia during the Gulf War.  However, 
that evidence either does not comment on the claimed sleep 
disabilities, cardiovascular disabilities, and GERD, or fails 
to attribute any such problem to any undiagnosed illness.  

Thus, even accepting as true the veteran's account of his 
experiences during service, see King, supra, the Board 
nevertheless finds that evidence sufficient to make these 
claims well grounded has not been submitted.  While the 
veteran is certainly competent to provide testimony regarding 
the occurrence of an in-service event, such as being exposed 
to oil well fire smoke, see Murphy, supra, and Goss v. Brown, 
9 Vet. App. 109 (1996), and is statutorily deemed to be 
competent to describe his symptoms and the disability related 
thereto, see 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, there 
is no indication in the record that he has the medical 
expertise necessary to conclude that any current disability 
can be attributed to an undiagnosed illness.  Id.  
Accordingly, the Gulf War undiagnosed illness claims for the 
aforementioned disabilities are not well grounded, and VA has 
no duty to assist him, pursuant to 38 U.S.C.A. § 5107, in the 
development of the facts pertinent to those claims.

Additional arguments applicable to the aforementioned claims

The veteran contended in his June 1993 claim, and elsewhere, 
that his service medical records generated during Desert 
Storm have not been associated with the file.  However, such 
records could not possibly show the presence of a current 
sleep apnea disability, as such disability is determined as 
of the date of claim, and the veteran's sleep apnea and sleep 
disorder claims were submitted nearly four years after 
service.  See Degmetich, supra ("current" disability, for 
well groundedness purposes, determined as of date of claim); 
Wade v. West, 11 Vet. App. 302 (1998) (service medical 
records lost in fire could not possibly have supplied nexus 
needed to well ground service connection claim).  It is also 
not possible that they would show the existence of a causal 
link between a current disability and an undiagnosed illness 
or combination of illnesses.  See Wade, supra.  Therefore, 
the Board's denial of his claim without the benefit of such 
records is not prejudicial to him.  

The veteran's representative contends that the veteran  is 
entitled to application of the benefit-of-the-doubt doctrine 
with respect to his claims.  However, the benefit-of-the-
doubt doctrine only applies if VA adjudicators reach the 
merits of the claim.  As the veteran has not presented well-
grounded claims, the Board does not reach the merits of the 
claims, and the benefit-of-the-doubt doctrine is 
inapplicable.  38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).

The representative contends, in his appellate brief, that the 
Board should determine whether the RO complied with M21-1, 
Part III,  1.03(a) (Change 50) (Feb. 23, 1996) and M21-1, 
Part VI,  2.10(f) (Change 48) (Aug. 5, 1996), prior to 
denying any service connection claim.  He further contends 
that, if the Board finds that the RO did not comply with 
these provisions, that the Board should remand the claim(s) 
for "full development" of the claim(s).

M21-1 Part VI,  2.10(f) provides that "the duty to assist 
will prevail while development is undertaken."  A careful 
reading of this provision clearly shows the initiation of 
this "development" is predicated on the claim being 
"potentially plausible on a factual basis."  Essentially, 
"potentially plausible on a factual basis" means the claim 
is well grounded.  Caluza v. Brown, 7 Vet. App. 498, 506 
(1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (Table); accord, 
Epps, supra.  Consequently, development is undertaken 
pursuant to M21-1 Part VI,  2.10(f) only after the veteran 
has presented a well-grounded claim.  As the veteran has not 
done so here, M21-1 Part VI,  2.10(f) is not applicable to 
his case.
M21-1 Part III,  1.03(a) provides that "[b]efore a decision 
is made about a claim being well grounded, it will be fully 
developed."  However, only when a claim is well grounded 
does the VA have an obligation to assist the claimant in 
"developing the facts pertinent to the claim."  Robinette 
v. Brown, 8 Vet. App. 69, 77-74 (1995) (emphasis added) 
(referring to evidentiary development required by the duty to 
assist provided by 38 U.S.C.A. § 5107(a)); Epps, supra; 
Beausoleil v. Brown, 8 Vet. App. 459, 465 (1996).  In 
contrast to the evidentiary development referred to in 
38 U.S.C.A. § 5107(a), the provisions of M21-1, Part III,  
1.03(a) refer to development of the claim.  The requirement 
to fully develop a claim - as compared to development of the 
evidence underlying the claim - merely requires VA to ensure 
that the veteran has not filed a defective or incomplete 
application.  See 38 U.S.C.A. § 5103 (West 1991); Robinette, 
8 Vet. App. at 78.  See 38 C.F.R. §§ 3.1(p), 3.160(a) (1997) 
(defining a claim as an application for VA benefits); see 
also M21-1, Part III,  1.01(a) (discussing development of 
pertinent facts "concerning a well-grounded claim"); M21-1, 
Part VI,  2.10(f) (discussed, supra); compare M21-1, Part 
III,  2.01(c) (during initial screening stage of claims 
processing, the RO shall review all applications and evidence 
immediately to determine if "a claim" is incomplete and 
requires "further development").  Indeed, M21-1, Part III, 
 1.03(a) relies upon Grottveit v. Brown, 5 Vet. App. 91 
(1993), in which the Court stated that "[i]f the claim is 
not well grounded, the claimant cannot invoke the VA's duty 
to assist [under 38 U.S.C.A. § 5107(a)] in the [evidentiary] 
development of the claim."  Grottveit at 93, citing 
38 U.S.C.A. § 5107(a).  Therefore, until a veteran has 
submitted a well-grounded claim, VA is under no duty to 
assist the veteran in establishing the evidentiary elements 
of his claim.  

In other words, the requirement to "fully develop" a claim 
pursuant to M21-1, Part III,  1.03(a) is not identical to 
the duty to assist which arises after a well-grounded claim 
has been submitted; instead, it appears to merely reiterate 
the duty to inform under 38 U.S.C.A. § 5103.  Consequently, 
ensuring that a claim is "fully developed" under M21-1 Part 
III,  1.03(a) means that, where the veteran's application 
for benefits is incomplete, VA shall notify the veteran of 
the evidence necessary to complete the application.  Id. 
at 80.  As there is no indication in the present case that 
the veteran's application is incomplete, or that he is aware 
of evidence which would render his claim well grounded, the 
RO complied with 38 U.S.C.A. § 5103 and  1.03(a).

The representative also contends, in his appellate brief, 
that the holding of Ledford v. West, 136 F.3d 776 (1998) is 
unreasonable and erroneous, because it "requires" 
appellants to foresee and argue preemptively all errors the 
Board might commit, and because the appellant has no prior 
notice of the points upon which the Board will rely when 
deciding an appeal.  However, Ledford does not stand for this 
proposition.  In Ledford, The United States Court of Appeals 
for the Federal Circuit (Federal Circuit) held that the 
doctrine of exhaustion of administrative remedies requires an 
appellant to present issues at the administrative (RO and 
Board) level before the Court and the Federal Circuit will 
address those issues.  136 F.3d at
779- 82.  In any event, the Court bars the type of litigation 
by ambush which the representative eschews.  See, e.g., Marsh 
v. West, 11 Vet. App. 468, 471-72 (1998).  Here, the RO did 
not address the well groundedness of the veteran's claim.  
However, when an RO does not specifically address the 
question of whether a claim is well grounded, but instead, as 
here, proceeds to adjudication on the merits, there is no 
prejudice to the veteran solely from the omission of the 
well-grounded-claim analysis.  Meyer v. Brown, 9 Vet. 
App. 425, 432 (1996).  That proposition applies even where 
the RO has failed to provide the claimant with the laws and 
regulations pertaining to well-grounded claims, and 
notwithstanding that the Board denies the claim as not well 
grounded after the RO adjudicates the claim on the merits.  
Id.  That is because the requirement that a claim be well 
grounded is merely a threshold matter, and its satisfaction 
does not, by itself, obtain anything for a claimant that he 
would not receive in a full merits adjudication.  Id.  
Moreover, and in any event, in the present case, the RO's 
June 1998 SOC notified the veteran of the applicability of 
38 C.F.R. § 3.317 and 38 U.S.C.A. § 5107 (well groundedness).  
Thus, the representative's contention here is inapposite. 

The representative contends that the Meyer decision, supra, 
ignores the statutory provision that claimants have the 
initial burden of submitting a well-grounded claim "[e]xcept 
when otherwise provided by the Secretary [of VA]," 
38 U.S.C.A. § 5107(a), because the Secretary has provided 
such an exception via the promulgation of the aforementioned 
portions of M21-1.  The representative's argument lacks merit 
because the portions of M21-1 to which he refers do not 
create an exception to 38 U.S.C.A. § 5107, as previously 
discussed.  

The representative also contends that the veteran's 
statements can suffice to prove service connection, citing 
Gareljo v. Derwinski, 2 Vet. App. 324 (1991).  However, 
Gareljo followed Cartwright v. Derwinski, 2 Vet. App. 24 
(1991), which held that when the evidence for and against a 
claim is in (or close to) relative equipoise in a merits 
adjudication of service connection, lay statements may place 
the evidence in equipoise, or in favor of the claim.  
However, where, as here, a claim is not well grounded, the 
Board does not reach the merits of the case, see Boeck and 
Gilbert, supra, and the doctrine of equipoise is 
inapplicable.  Thus, the representative's reliance on Gareljo 
and Cartwright is misplaced.


ORDER

The veteran's claims of entitlement to service connection for 
a sleep disorder other than sleep apnea and sleep apnea, on a 
direct basis, are not well grounded, and thus, the appeals of 
those matters are denied.  

The veteran's claims of entitlement to service connection for 
sleep apnea, a sleep disability other than sleep apnea, heart 
disease, hypertension, a cardiovascular disability other than 
heart disease and hypertension, and GERD, pursuant to 
38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, are not well 
grounded, and thus, the appeals of those matters are also 
denied.


REMAND

Unlike the claims of direct service connection that were 
denied as not well grounded, the claims of direct service 
connection for cardiovascular disability (including 
hypertension and heart disease), sore joints, and GERD, are 
supported by a pair of medical opinions.  Specifically, an 
April 1995 letter from Dr. Tillinger indicates that the 
veteran's experiences in Kuwait might be at least partially 
responsible for a mild anxiety disorder, which in turn might 
cause have contributed to medical problems including a 
blocked coronary artery, hypertension, "stomach or duodenal 
ulcers."  When viewed in light of Dr. Tillinger's letter, 
the claim for GERD is further supported by January and 
February 1995 records of Donald R. Fagin (a private 
physician), which reflect a diagnosis of GERD and the comment 
that Dr. Fagin thought that the veteran's anxiety was "a big 
part of his [GERD] problem."  Similarly, the veteran's 
direct service connection claim for sore joints is supported 
by the January 1993 VA examiner's diagnosis of joint pain, in 
response to the veteran's complaints of continuity of 
symptomatology since 1991 (which in turn are consistent with 
the service medical records and other medical evidence of 
record).  See Savage v. Gober, 10 Vet. App. 489, 494-95, 497 
(1997).

Yet, there are significant diagnostic and etiologic questions 
regarding the claims of direct service connection for 
connection for cardiovascular disability (including 
hypertension and heart disease), sore joints, and GERD, which 
are left unanswered by the medical evidence of record.  For 
example, the nature of the veteran's joint complaints is 
unclear; no examiner has asked the veteran to identify all 
painful joints, and sought to determine whether there is a 
clinical diagnosis that accounts for each such joint.  
(Currently, the record contains diagnoses of bilateral tennis 
elbow (May and June 1991 service medical records), 
polymyalgia rheumatica (November 1991 private records of the 
Turner Clinic), and degenerative changes of the thoracic 
spine (private records of Dr. Jeffery J. Dorociak).)  As to 
etiologic questions, Dr. Tillinger expressed some ambivalence 
of his etiologic statement, indicating that the anxiety 
disorder could be caused by medical conditions which might 
have nothing to do with the veteran's military service.  
Also, Dr. Fagin's January 1995 esophagogastroduodenoscopy 
procedure note reflects a possible aspirin ingestion etiology 
of the veteran's gastrointestinal complaints.  Similarly, the 
June 1995 VA general examination report reflects a diagnosis 
of GERD symptoms exacerbated by the amount of caffeine 
ingested (a gallon of tea and two cups of coffee per day).  
Furthermore, a March 1992 VA general examination report 
reflects that rheumatologic testing was to be accomplished, 
but it is not clear that this was done (notwithstanding that 
a March 1994 VA outpatient record appears to note a negative 
"R[heumatic] F[actor]").  See Hyder v. Derwinski, 1 Vet. 
App. 221 (1991).  Also, no examiner has commented on the 
October 1989 blood pressure reading of 148/104 (the earliest 
diastolic reading of over 100 in the current record, see 
38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertension)), or 
the number, frequency, or significance of diastolic readings 
in the 90's noted during the 1980's.  Therefore, a remand is 
warranted for an examination to address these concerns.  
38 C.F.R. § 19.9 (1998). 

Also, with respect to Gulf War undiagnosed illness claims, 
the June 1995 VA general examination report reflects the 
veteran's complaints of joint and muscle aches, and a 
diagnostic assessment of "Gulf War Syndrome."  This opinion 
distinguishes his claims of joint and muscle pain from his 
other Gulf War undiagnosed illness claims.  Moreover, the 
veteran has complained that his muscles and joints began to 
bother him while serving in South West Asia.  See, e.g., 
January and September 1993 VA Gulf War examination reports, 
January 1994 claim, and February 1994 statement.  Lay and 
medical evidence of record indicates that such complaints of 
have persisted more than six months.  Thus, it appears that 
the veteran has made a prima facie showing under 38 C.F.R. 
§ 3.317, at least with respect to his joint and muscle 
claims.

Yet, it is unclear from the record whether history, physical 
examination, and laboratory studies have ruled out the 
existence of recognizable clinical entities which might be 
responsible for the veteran's complaints.  For example, a 
November 1991 private laboratory report from the Turner 
Clinic reflects a diagnosis of polymyalgia rheumatica.  
(Polymyalgia rheumatica is defined as a syndrome within the 
group of collagen diseases different from spondyloarthritis 
or from humeral scapular polyarthritis by the presence of an 
elevated sedimentation rate.  STEADMAN'S MEDICAL DICTIONARY 1404 
(26th ed. 1404).)  The Board is concerned that this might be 
the source of the veteran's muscle and joint complaints.  
Moreover, the veteran contended in his February 1995 NOD that 
the in-service diagnosis of tennis elbow (May and June 1991 
service medical records) does not adequately account for his 
elbow pain, because there would have to have been an 
antecedent injury to cause tennis elbow; however, he has not 
shown that he is competent to render such an opinion, and he 
has not explained the medical basis for such an opinion.  The 
Board is not permitted to use its own medical judgment as to 
such questions.  Therefore, a remand is also warranted for an 
examination which addresses the etiology of his muscle and 
joint complaints, including their possible relation to any 
undiagnosed illness.

Furthermore, the veteran contends that he was in 
"excellent" health for 25 years prior to his entry into 
South West Asia during the Gulf War.  However, a review of 
his service medical records reflects a variety of problems 
which need to be addressed with respect to both direct 
service connection claims and Gulf War undiagnosed illness 
claims.  For example, with respect to his claim of painful 
joints, the Board notes that the April 1967 entrance 
examination report reflects that the veteran had injured his 
knee playing football prior to service.  The veteran injured 
his left ankle in April 1981, and his right ankle in February 
1982.  January 1983 service medical records reflect 
complaints of right foot pain and a diagnosis of probable old 
degenerative joint disease.  March and November 1988 service 
medical records reflect diagnoses of possible myofascial pain 
disorder, although this appears to have been with respect to 
his complaints of low back pain (for which he is already 
service-connected).  With respect to cardiovascular and 
hypertension complaints, service medical records from the 
1980's reflect the veteran's increasing weight and serum 
cholesterol levels.  See, e.g., December 1987 medical 
screening summary and November 1988 flight examination, with 
notation of level of cardiac risk.

Additionally, certain service medical records, VA records, 
and private treatment records are mentioned in the record, 
but are not in the file.  These need to be obtained if 
reasonably possible, as specified in the indented remand 
instruction paragraphs, below.  38 C.F.R. § 3.159 (1998); 
Bell v. Derwinski, 2 Vet. App. 611 (1992).

This case is REMANDED for the following actions: 

1.  The RO should contact the National 
Personnel Records Center (NPRC) and any 
other indicated records custodian(s) and 
take reasonable steps to obtain the 
veteran's service medical and clinical 
records from his service in South West 
Asia during the Gulf War (especially as 
noted on his January 1994 VA Form 21-
526, item 19).  The RO should also ask 
the NPRC for hospitalization, x-ray, and 
clinical records of his treatment at 
Winn Army Hospital, Ft. Stewart, 
Georgia, from April to August 1991, 
including x-ray reports generated in 
June 1991 (mentioned in the veteran's 
January 1994 VA Form 21-526, items 19 
and 20).  The RO should also ask for all 
service medical records and service 
personnel records pertaining to the 
award of disability severance pay 
received by the veteran from the service 
department (mentioned in his January 
1994 VA Form 21-526, item 15), 
including, if indicated, any medical 
board reports.  All materials obtained 
should be associated with the file. 

2.  The RO should take reasonable steps 
to obtain records of the veteran's 
treatment for joint, muscle, 
cardiovascular, and gastrointestinal 
problems from the following health care 
providers:  from the VA Medical Center 
in Savannah, Georgia, outpatient 
treatment records dated from October 
1991 to February 1992 (mentioned in the 
veteran's January 1994 VA Form 21-4142), 
and, if existing, copies of the 
rheumatologic consultation report 
scheduled for March 26, 1992, with 
copies of associated treatment notes and 
laboratory reports, if any (mentioned on 
the cover of the March 1992 VA general 
examination report), from Dr. Ronald R. 
Fagin in Savannah, Georgia, treatment 
records dated from March 1995 to present 
(mentioned in the veteran's June 1995 VA 
Form 21-4142 and cover letter), from Dr. 
Arnold J. Tillinger in Savannah, 
Georgia, the treatment and counseling 
records that served as the basis of his 
April 1995 opinion letter, and any other 
treatment records reflecting the 
veteran's physical complaints (indicated 
by Dr. Tillinger's April 1995 letter and 
the veteran's June 1995 VA Form 21-4142 
and cover letter), from Dr. Eugene A. 
Nwosu in Savannah, Georgia, treatment 
records dated from June 1995 to date 
(mentioned in the veteran's June 1995 VA 
Form 21-4142 and cover letter); and, 
from Dr. Stephen Miller in Charleston, 
South Carolina, the records of his 
treatment of the veteran from July 1991 
to date (indicated in the veteran's 
October 1996 authorization letter to Dr. 
Miller).  The RO should also write to 
the veteran and his representative and 
ask the veteran to identify the dates 
and location of the following instances 
of treatment, as well as the identity of 
the health care provider:  (a) the 
health care provider(s) and treatment 
date(s) for gastrointestinal and 
cardiology treatment as referred by 
Primus (mentioned in Dr. Fagin's 
November 4, 1994 treatment notes), and 
(b) the identity of the health care 
provider(s), and location of treatment, 
for the third angioplasty and repeat 
catheterization, provided in June 1997 
and July 1997, respectively (mentioned 
in the July 1997 treatment records of 
Dr. Jeffery J. Dorociak).  If the 
veteran provides sufficient identifying 
information, then the RO should take 
reasonable steps to obtain the records 
of any treatment identified.  All 
materials obtained should be associated 
with the file.  

3.  Thereafter, the RO should schedule 
the veteran for a cardiovascular 
examination to determine the nature and 
etiology of all claimed cardiovascular 
disorders, including coronary artery 
disease and hypertension.  The RO should 
provide the examiner with the claims 
file.  The examiner should review the 
claims file (including the summary of 
pertinent evidence in the body of this 
remand), examine the veteran, record his 
blood pressure, and provide a diagnosis 
for all cardiovascular disability found.  
For each cardiovascular disability 
identified, the examiner should comment 
on whether it is at least as likely as 
not that such disability is attributable 
to the veteran's military service 
(including whether the disability had 
its onset during service).  If 
additional testing is indicated, such as 
psychiatric testing to determine whether 
a psychiatric disability which might be 
causing hypertension or other 
cardiovascular disability is due to 
service, the examiner should indicate 
this.  In this regard, the examiner 
should consider the April 1995 private 
letter of Dr. Tillinger, which indicated 
that the veteran's cardiovascular 
problems might be due (in whole or in 
part) to an anxiety disorder, which 
might in turn be due to his military 
experiences in Kuwait.

4.  Thereafter, the RO should schedule 
the veteran for an rheumatologic 
examination to determine the nature and 
etiology of the veteran's complaints of 
joint pain.  The RO should provide the 
examiner with the claims file.  The 
examiner should review the claims file 
(including the summary of pertinent 
evidence in the body of this remand), 
examine the veteran, conduct 
rheumatologic testing as noted in the 
March 1992 VA general examination 
report, and provide a diagnosis for each 
joint disability found.  The examiner 
should take all reasonable steps to rule 
out polymyalgia rheumatica, myofascial 
pain disorder, and degenerative joint 
disease.  For each joint disability 
specifically identified, the examiner 
should comment on whether it is at least 
as likely as not that such disability is 
attributable to the veteran's military 
service (including whether the 
disability had its onset during 
service).  

An examination should also be conducted 
which considers complaints of muscle 
pain and joint pain, which the veteran 
claims are due to service in Southwest 
Asia during the Gulf War.  The examiner 
should review the claims file and a copy 
of this remand, elicit all symptoms from 
the veteran, examine the veteran, 
conduct all indicated testing, and 
render all pertinent diagnoses.  The 
examiner should consider that symptom-
based "diagnoses," including, but not 
limited to, myalgia, and arthralgia, are 
not considered as diagnosed conditions 
for compensation and pension purposes.  
The examiner should comment on the 
frequency, duration, and severity of all 
complaints, and state what precipitates 
and what relieves them.  For each 
undiagnosed problem, the examiner should 
state which symptoms, abnormal physical 
findings, and abnormal laboratory test 
results are associated with each.  If 
further specialist examinations are 
indicated, the examiner should so state.  
The examiner should consider that the 
veteran's diagnoses have previously 
included polymyalgia rheumatica 
(November 1991 Turner Clinic laboratory 
report).  The examiner should comment on 
the medical probabilities as to whether 
any of the veteran's complaints are 
attributable to prescription drugs or 
caffeine use.  The examiner should state 
whether it is at least as likely as not 
that the veteran has an "undiagnosed 
illness," defined as a disability with 
signs and symptoms which, by history, 
physical examination, and diagnostic 
tests cannot be attributed to a known 
diagnosis.  38 C.F.R. § 3.317 (1998).  

5.  Thereafter, the RO should schedule 
the veteran for gastrointestinal 
examination to determine the nature and 
etiology of his claimed GERD.  The RO 
should provide the examiner with the 
claims file.  The examiner should review 
the claims file (including the summary 
of pertinent evidence in the body of 
this remand), examine the veteran, and 
state whether the veteran has GERD.  The 
examiner should comment on whether it is 
at least as likely as not that such 
disability is attributable to the 
veteran's military service (including 
whether the disability had its onset 
during service).  If additional testing 
is indicated, such as psychiatric 
testing to determine whether a 
psychiatric disability which might be 
causing GERD is due to service, the 
examiner should indicate this.  In this 
regard, the examiner should consider the 
April 1995 private letter of Dr. 
Tillinger, which indicated that the 
veteran's gastrointestinal problems 
might be due (in whole or in part) to an 
anxiety disorder, which might in turn be 
due to his military experiences in 
Kuwait.

6.  Thereafter, the RO should consider 
whether any additional development is 
warranted, such as examinations by 
specialists that might be indicated by 
the above-requested examination reports, 
including a psychiatric evaluation that 
might be suggested by the examiners.  If 
any specialist examination is required, 
each specialist should be provided with 
the claims file, including the reports 
of the aforementioned examinations, with 
specifications as to which symptom(s), 
abnormal finding(s), or abnormal 
laboratory test(s) have not been 
attributed to a known clinical 
diagnosis.  Each specialist should be 
asked to determine which of any joint or 
muscle problem can be attributed in this 
veteran to a known clinical diagnosis; 
and which, if any, cannot be so 
attributed.  

7.  Thereafter, if applicable, the RO 
should consider whether any additional 
or supplemental examination report is 
required in order to reconcile the 
reports of the examinations sought 
above.

8.  Thereafter, the RO should take 
adjudicative action on the veteran's 
claims of entitlement to service 
connection for a cardiovascular disorder 
(including coronary artery disease and 
hypertension), sore joints, and GERD, 
claimed on bases other than 38 C.F.R. 
§ 3.317, see, e.g., 38 C.F.R. §§ 3.303, 
3.306, 3.307, 3.309, 3.310 (1998).  The 
RO should also take adjudicative action 
on his claims of entitlement to service 
connection for joint pain and muscle 
pain, claimed pursuant to 38 C.F.R. 
§ 3.317.  If any benefit sought is 
denied, a SSOC should be issued to the 
veteran and his representative.

After the veteran and his representative have been given an 
opportunity to respond to the SSOC, the claims folder should 
be returned to this Board for further appellate review.  No 
action is required by him until he receives further notice.  
The purposes of this remand are to procure clarifying data 
and to comply with governing adjudicative procedures.  The 
Board intimates no opinion, either legal or factual, as to 
the ultimate disposition of these remanded issues.

This claim must be afforded expeditious treatment by the RO.  
The law requires that all claims that are remanded by the 
Board or by the Court for additional development or other 
appropriate action must be handled in an expeditious manner.  
See The Veterans' Benefits Improvements Act of 1994, Pub. L. 
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. 
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).  
In addition, VBA's Adjudication Procedure Manual, M21-1, Part 
IV, directs the ROs to provide expeditious handling of all 
cases that have been remanded by the Board and the Court.  
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.



		
	MARK F. HALSEY
	Member, Board of Veterans' Appeals