Citation Nr: 0705914 Decision Date: 03/01/07 Archive Date: 03/13/07 DOCKET NO. 05-12 922 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for migraines, including as due to an undiagnosed illness. 2. Entitlement to service connection for stomach and abdominal pains, including as due to an undiagnosed illness. 3. Entitlement to service connection for pain and burning of the toes, including as due to an undiagnosed illness. 4. Entitlement to service connection for intestinal problems, including as due to an undiagnosed illness. 5. Entitlement to service connection for numbness of extremities, including as due to an undiagnosed illness. 6. Entitlement to service connection for pain and excessive bleeding during menstruation, including as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Seesel, Associate Counsel INTRODUCTION The veteran had active service from April 1988 until April 1992. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2004 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND A preliminary review of the record discloses that further development is necessary. Specifically, VA's duty to assist has not been satisfied. This is a case in which the veteran's service records are not in evidence. In cases where the veteran's service records are unavailable through no fault of the veteran, there is a heightened obligation to assist the veteran in the development of her case. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The heightened duty to assist the veteran in developing facts pertinent to her claim in a case where service medical records are presumed destroyed includes the obligation to search for alternative medical records. Moore v. Derwinski, 1 Vet. App. 401 (1991). Where the veteran's service medical records have been destroyed or lost, the Board is under a duty to advise the veteran to obtain other forms of evidence, such as lay testimony. Dixon v. Derwinski, 3 Vet. App. 261 (1992). During the August 2006 Board hearing, the veteran testified she was treated by Jill Corrigan, M.D. for her foot condition. These records, however, are not associated with the claims file. The veteran also related she was seen as early as 1993 at the University of Mississippi Medical Center in Jackson for stomach and abdominal pains. Although the veteran explained the University of Mississippi Medical Center refused to provide the medical records, there is no indication in the record that VA ever attempted to assist the veteran in obtaining these records. The veteran also confirmed she continued to receive medical treatment by Bill Maddox, M.D. However, only records dating from July 2002 until September 2003 are associated with the claims file. These treatment records are relevant and should be obtained and associated with the claims file. During the Board hearing, the veteran reported she was seen during service for an injury during training and remembered reporting to sick call but did not recall the exact problems for which she was seen. For example, she indicated she may have been seen in service for migraines. Furthermore, she has provided testimony and evidence of observable symptoms such as headaches, constipation, heavy bleeding, tingling of the hands and pain in the feet during service or directly after her discharge from service. The veteran is competent to provide lay evidence in reporting such continuous symptoms. "Competent lay evidence" means "any evidence not requiring that the proponent have specialized education, training, or experience." Lay evidence is competent "if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (one not a medical expert is nevertheless competent to offer evidence of his symptoms in support of a claim for an increased disability evaluation); see Layno v. Brown, 6 Vet. App. 465, 470 (1994); Harvey v. Brown, 6 Vet. App. 390, 393 (1994). Under the duty to assist, a medical examination or medical opinion is considered necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent medical evidence of a currently diagnosed disability or persistent or recurrent symptoms of a disability; (2) establishes that the veteran suffered an event, injury, or disease in service; and (3) indicates that the claimed disability or symptoms may be associated with an established event, injury or disease in service or with another service-connected disability. 38 C.F.R. § 3.159(c)(4). See Charles v. Principi, 16 Vet. App. 370 (2002) (Observing that under 38 U.S.C.A. § 5103A(d)(2), VA was to provide a medical examination as "necessary to make a decision on a claim, where the evidence of record, taking into consideration all information and lay or medical evidence [including statements of the claimant]; contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but does not contain sufficient medical evidence for the [VA] to make a decision on the claim."). Therefore, the Board is of the opinion that the veteran has provided evidence of current disabilities and testimony of persistent symptoms since her discharge from service and as such, a VA examination should be obtained. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should advise the veteran of the option of submitting lay testimony and other alternate sources of evidence in support of the claims, including but not limited to letters to and from the veteran during the course of military service that corroborate in-service events; letters of commendation or appreciation dating from military service that would substantiate her account of military service events; accounts, statements, and letters from family, friends, acquaintances, and co- workers, detailing the makers' recollection of the development of the veteran's in-service and post-service history as to the claimed disorders; post- service employment physical examinations, insurance claims, and any other material that would indicate that the veteran's disorders were incurred in or as a result of any incident of active military service. 2. The RO/AMC should contact the veteran and ask her to specify all medical care providers who treated her for headaches, abdominal or stomach pain, numbness of the extremities, pain in the toes, intestinal problems and menstrual problems. The RO/AMC should then obtain and associate with the claims file any records identified by the veteran that are not already associated with the claims file. The veteran should be specifically asked to complete an authorization for release of medical records for the treatment she received from Dr. Jill Corrigan. The veteran should also be asked to complete an authorization for the University of Mississippi Medical Center. 3. The RO/AMC should obtain and associate with the claims file updated medical records, demonstrating treatment from September 2003 until present, from Dr. Bill Maddox. 4. The veteran should be afforded a VA examination to ascertain the nature and etiology of all disorders that may be present. Any and all indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The examiner is requested to review all pertinent records associated with the claims file, and following this review and the examination render an opinion as to the following: a) Are there any current diagnosed conditions related to: 1) Headaches; 2) Abdominal or stomach pain; 3) Numbness of the extremities; 4) Intestinal problems; 5) Pain in the feet; or 6) Menstrual pain and heavy bleeding. b) If there are currently diagnosed disabilities, the examiner is requested to express an opinion as to whether the currently diagnosed conditions are chronic in nature and whether the conditions are causally or etiologically related to any incident of the veteran's active service. c) If the veteran is shown to have such signs and/or symptoms, whether those signs and symptoms may be manifestations of an undiagnosed illness or medically unexplained chronic multisymptom illness. A clear rationale for all opinions is required, to include a discussion of the facts and medical principles involved. Copies of all pertinent records in the veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The veteran is free to submit any additional evidence and/or argument she desires to have considered in connection with her current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran unless she is notified. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefits sought are not granted, the veteran and her representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). _________________________________________________ VITO A. CLEMENTI 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) (2006).