Citation Nr: 1139044 Decision Date: 10/20/11 Archive Date: 10/25/11 DOCKET NO. 09-26 667 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for mycoplasma with fatigue and polyarthralgia. 2. Entitlement to an increased initial evaluation for post-traumatic stress disorder (PTSD), currently evaluated as 50 percent disabling. 3. Entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU). 4. Entitlement to a higher initial evaluation for fibromyalgia, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1977 to February 1979, and from December 1990 to May 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. The record shows that the Veteran reported on VA treatment in March 2008, that he was using Vocational Rehab benefits from VA. In Moore v. Gober, 10 Vet. App.436, 440 (1997), the Court held that where it is a matter of record that a Veteran has received benefits under the education and vocational rehabilitation program, the Board is on notice that such records exist and is obligated to obtain and consider them. VA has an obligation under the Veterans Claims Assistance Act of 2000 (VCAA) to associate all relevant records in VA's possession, as well as all relevant records from private healthcare providers, with the claims file of a Veteran. 38 C.F.R. § 3.159 (2010). Additionally, the statement of the case was issued in June 2009. Subsequently, additional evidence was associated with the claims file including VA treatment records, VA examination reports and a CD ROM from the Social Security Administration. The documents on the CD ROM have not been printed out. A supplemental statement of the case addressing all of the evidence associated with the file since the issuance of the statement of the case has not been issued. Under 38 C.F.R. § 19.31, a supplemental statement of the case must be furnished to the Veteran when additional pertinent evidence is received after a statement of the case or the most recent supplemental statement of the case has been issued. See also 38 U.S.C.A. § 7105 (West 2002). As these requirements have not been satisfied, a remand is required in order to ensure due process to the Veteran. During his April 2011 hearing before the undersigned, the Veteran testified that he has ongoing psychiatric treatment with VA. The most recent VA treatment records in the file are dated in July 2010. While the case is in remand status, the RO should ensure that all current VA treatment records for the Veteran have been associated with the file. During the course of this appeal, the Veteran was granted service connection for fibromyalgia based on his complaints of fatigue and joint pain. In January 2011, he issued a notice of disagreement to the 10 percent evaluation assigned. However, the RO has not issued a statement of the case addressing this claim, and he has not been given an opportunity to perfect his appeal of this downstream claim to the Board by also filing a timely VA Form 9 or equivalent statement. So the Board has to remand, not merely refer, this claim. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: 1. Attempt to obtain any and all VA vocational rehabilitation training and education (VRT) records pertaining to the Veteran. All efforts to obtain these records should be fully documented and a negative response should be provided if no records exist. The Veteran should also be notified if these records do not exist and/or are unobtainable pursuant to 38 C.F.R. § 3.159(e). 2. Obtain all VA treatment records for the Veteran dated from July 2010 and associate them with the file. 3. Following completion of the above, the claims should be readjudicated. As to the issue regarding a higher initial rating for fibromyalgia, send the Veteran a SOC concerning this downstream claim. Advise him that he still needs to file a substantive appeal (VA Form 9 or equivalent statement), in response to the SOC, to perfect an appeal to the Board concerning this downstream claim. 38 C.F.R. § 20.200. If, and only if, he perfects an appeal of this downstream claim should it be returned to the Board for further appellate consideration. If any other benefit sought is not granted, the Veteran and his representative should be furnished an appropriate supplemental statement of the case which discusses all evidence received since the issuance of the statement of the case in June 2009. This would include the records from SSA which should be printed and associated with the file. The Veteran and his representative should be provided an opportunity to respond. The claim should be returned to the Board as warranted. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2010). _________________________________________________ F. JUDGE FLOWERS 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) (2010).