08-16 293 ( 2010 )

Citation Nr: 1008495
Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-16 293A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUES
1. Entitlement to service connection for chronic fatigue, to
include as due to an undiagnosed illness.
2. Entitlement to service connection for joint pain, to
include as due to an undiagnosed illness.
3. Entitlement to service connection for muscle pain, to
include as due to an undiagnosed illness.
4. Entitlement to service connection for a sleep disorder
(claimed as inability to sleep), to include as due to an
undiagnosed illness.
5. Entitlement to service connection for mood swings, to
include as due to an undiagnosed illness.
6. Entitlement to service connection for memory loss, to
include as due to an undiagnosed illness.
7. Entitlement to service connection for viral infections,
to include as due to an undiagnosed illness.
REPRESENTATION
Veteran represented by: Alabama Department of Veterans
Affairs
ATTORNEY FOR THE BOARD
T. Adams, Associate Counsel
INTRODUCTION
The Veteran served on active duty from August 1990 to
December 1992. He also served in Southwest Asia during the
Persian Gulf War from February 1991 to March 1991, with
additional service in the Army National Guard.
This case is before the Board of Veterans' Appeals (Board) on
appeal from a December 2006 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in Montgomery,
Alabama, that denied the benefits sought on appeal.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, D.C. VA will notify the Veteran
if further action is required.
REMAND
A review of the record indicates that further development is
necessary with respect to all of the Veteran's service
connection claims. Although the Board regrets the additional
delay, a remand is necessary to ensure that due process is
followed and that there is a complete record upon which to
decide the Veteran's claims so that he is afforded every
possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159.
Additional treatment records relevant to the Veteran's
claimed mood swings and memory loss may be outstanding. The
Board notes that in May 2003 the Veteran indicated that he
received counseling at Bayview Professional Associates in
Mobile, Alabama. Accordingly, the Veteran's private
treatment records should be obtained.
In addition, the precise dates of the Veteran's service are
not entirely clear. Active military, naval, or air service
includes any period of active duty training during which the
individual concerned was disabled or died from a disease or
injury incurred in or aggravated in line of duty, or any
period of inactive duty training during which the individual
concerned was disabled or died from injury incurred in or
aggravated in line of duty. 38 U.S.C.A. § 101(21), (24)
(West 2002); 38 C.F.R. § 3.6(a), (d) (2009). Active duty
training includes full-time duty in the Armed Forces
performed by Reserves for training purposes. 38 C.F.R.
§ 3.6(c)(1) (2009). Service connection may be granted for
disability resulting from disease or injury incurred in or
aggravated during active duty training, or from injury
incurred or aggravated during inactive duty training.
38 U.S.C.A. §§ 101(24), 106, 1131 (West 2002). However, the
presumptions do not apply to active duty training or inactive
duty training. Biggins v. Derwinski, 1 Vet. App. 474 (1991).
In order for the Veteran to be eligible for service
connection for chronic fatigue, joint pain, muscle pain, a
sleep disorder, mood swings, memory loss, and viral
infections during his service, the record must establish that
it is at least as likely as not that he was disabled during
active duty for training due to a disease or injury incurred
or aggravated in the line of duty. Mercado-Martinez v. West,
11 Vet. App. 415 (1998); Paulson v. Brown, 7 Vet. App. 466(1995). The Veteran claims that his chronic fatigue, joint
pain, muscle pain, sleep disorder, mood swings, and memory
loss were incurred during his service in June 1993 and that
he served in the Army National Guard from January 1993 to
August 1993. While the Veteran's service personnel and
service treatment records from his first period of service
have been obtained, the service personnel and service
treatment records that pertain to the Veteran's National
Guard service have not been obtained. Since Veteran status
depends, in part, on whether the Veteran's chronic fatigue,
joint pain, muscle pain, a sleep disorder, mood swings,
memory loss, and viral infection were incurred in or
aggravated during active service, or active or inactive duty
for training, an attempt should be made to obtain
documentation of the specific dates of service and service
treatment records.
The Veteran claims that his chronic fatigue, joint pain,
muscle pain, a sleep disorder, mood swings, and memory loss
are related to his service in the National Guard and that his
viral infection was incurred after his National Guard
service. The service treatment records from the Veteran's
first period of service reflect treatment for a strained
right knee and an upper respiratory infection in September
1990, an upper respiratory infection in December 1991, and
musculoskeletal pain in October 1992. In July 1992, he was
treated for a suspected sexually transmitted disease and in
October 1992 was assessed as having positive Chlamydia
contact. Post-service treatment records include private
treatment records dated in May 2000 that reflect an
assessment of fatigue and an assessment of a sleep
disturbance and nightmares in May 2001. A March 2003 private
psychiatric evaluation reflects the Veteran's complaints that
he could not sleep and was tired and irritable. However, his
memory was not impaired. On VA examination in September
2003, there was no evidence of any gross memory loss and the
Veteran was diagnosed with anxiety disorder, not otherwise
specified. On VA examination in September 2006, the Veteran
again complained of chronic fatigue and irritability, but was
diagnosed with chronic posttraumatic stress disorder (for
which service connection has been granted).
VA's duty to assist includes a duty to provide a medical
examination or obtain a medical opinion where it is necessary
to make a decision on the claim. 38 U.S.C.A. § 5103A(d);
38 C.F.R. 3.159(c)(4) (2009); Robinette v. Brown, 8 Vet.
App. 69 (1995). Although the Veteran is competent to report
the onset of chronic fatigue, joint pain, muscle pain, a
sleep disorder, mood swings, memory loss, and viral
infections during and after his service, he is not competent
to diagnose or to relate any current chronic fatigue, joint
pain, muscle pain, sleep disorder, mood swings, memory loss,
or viral infections to his active service. Accordingly, the
Board finds that VA examinations are necessary in order to
fairly decide his claims. McLendon v. Nicholson, 20 Vet.
App. 79 (2006).
Accordingly, the case is REMANDED for the following action:
1. Contact the United States Army
Personnel Center, or any other appropriate
service department office, and obtain
service personnel records, including the
Veteran's NGB Form 22, and complete
service treatment records that document
the specific dates of the Veteran's active
duty, and active and inactive duty
training for all periods of service. A
formal determination, pursuant to
38 C.F.R. § 3.159(c)(2), must be entered
if it is determined that the above records
or information do not exist or that
efforts to obtain them would be futile.
In the event that it is determined that
the records are unavailable, provide the
Veteran with appropriate notice under
38 C.F.R. § 3.159(c), and give him an
opportunity to respond.
2. After obtaining the necessary
authorization, obtain the Veteran's
private treatment records from Bayview
Professional Associates in Mobile, Alabama
and any additional providers and treatment
records identified by the Veteran. All
attempts to secure the records must be
documented in the claims folder.
3. After completing the above, the
Veteran should be scheduled for a VA
examination by a physician with the
appropriate expertise to determine the
nature and etiology of the Veteran's
claimed chronic fatigue, joint pain,
muscle pain, a sleep disorder, mood
swings, memory loss, and viral infections.
The examiner must review the claims file
before completing the examination report.
The examiner should identify any objective
evidence of the Veteran's claimed chronic
fatigue, joint pain, muscle pain, a sleep
disorder, mood swings, memory loss, and
viral infections; render a diagnosis with
respect to each claimed symptom which is
due to a known clinical diagnosis; and
provide an opinion with respect to each
currently diagnosed disorder as to whether
it is likely, unlikely, or at least as
likely as not that the disorder is
etiologically related to the Veteran's
military service. The examiner should
also specifically identify any objectively
demonstrated symptoms that are not
attributable to a known clinical diagnosis
and whether such constitute a medically
unexplained chronic multisymptom illness.
The examiner should further indicate
whether such disabilities existed for 6
months or more or whether they exhibit
intermittent worsening over a 6 month
period. In rendering his or her opinions,
the examiner must consider the Veteran's
statements regarding the onset of his
claimed chronic fatigue, joint pain,
muscle pain, a sleep disorder, mood
swings, memory loss, and viral infections,
and his statements regarding the
continuity of symptomatology of each
claimed disorder. Dalton v. Nicholson,
21 Vet. App. 23 (2007). The examiner
should provide the supporting rationale
for each opinion expressed.
4. After completing the above, and any
other development as may be indicated by
any response received as a consequence of
the actions taken in the preceding
paragraphs, the Veteran's service
connection claims should be readjudicated
based on the entirety of the evidence. If
the claims remain denied, the Veteran and
his representative should be issued a
supplemental statement of the case. An
appropriate period of time should be
allowed for response.
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).
These claims must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or
the United States Court of Appeals for Veterans Claims for
development or other action must be handled in an expeditious
manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
A. JAEGER
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).