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.
Free access — add to your briefcase to read the full text and ask questions with AI
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).