Citation Nr: 0812633 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 06-34 268 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome (CFS). 2. Entitlement to service connection for an acquired psychiatric disorder other than somnambulism and dysthymia, to include depression, obsessive compulsive disorder, chronic adjustment disorder, and post-traumatic stress disorder (PTSD). 3. Entitlement to an initial evaluation in excess of 50 percent for somnambulism and dysthymia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. D. Deane, Counsel INTRODUCTION The veteran had active military service from April 1988 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia that denied service connection for CFS, for an acquired psychiatric disorder, and for somnambulism. In a September 2006 rating decision, the RO granted service connection and assigned a 10 percent rating for somnambulism, effective July 26, 2004. In a January 2007 rating decision, the RO increased the veteran's evaluation for somnambulism to a 50 percent rating, effective July 26, 2004. In that rating, the RO added dysthymia as a component of the service- connected somnambulism. The issue of entitlement to a higher disability evaluation based upon an initial grant of service connection remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993); Fenderson v. West, 12 Vet. App. 119 (1999). In July 2007, the veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. A transcript of this hearing is of record. In April 2008, the undersigned Acting Veterans Law Judge granted the motion of the veteran to advance this case on the Board's docket, pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). The issues of entitlement to service connection for an acquired psychiatric disorder other than somnambulism and dysthymia, to include depression, obsessive compulsive disorder, chronic adjustment disorder, and PTSD and entitlement to an initial evaluation in excess of 50 percent for somnambulism and dysthymia are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT During the July 2007 hearing, prior to the promulgation of a decision in the appeal, the Board received notification from the veteran, through his authorized representative, that a withdrawal of the appeal for entitlement to service connection for chronic fatigue syndrome is requested. CONCLUSION OF LAW The criteria for withdrawal of a Substantive Appeal by the veteran's representative have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, a Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. See 38 C.F.R. § 20.202 (2007). Withdrawal may be made by the appellant or by his authorized representative. See 38 C.F.R. § 20.204 (2007). The veteran, through his authorized representative, has withdrawn his appeal for entitlement to service connection for chronic fatigue syndrome on the record during his July 2007 hearing. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal for entitlement to service connection for chronic fatigue syndrome and it is dismissed. ORDER The appeal concerning entitlement to service connection for chronic fatigue syndrome is dismissed. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) is applicable to this appeal. Evidence of record indicates that the veteran has been assigned an initial evaluation of 50 percent for somnambulism (sleep walking) and dysthymia under Diagnostic Codes 9499- 9433. The veteran has perfected an appeal as to the initial evaluation assigned for his service-connected somnambulism and dysthymia. The veteran also contends that he suffers from additional acquired psychiatric disorders other than somnambulism and dysthymia, to include depression, obsessive compulsive disorder, chronic adjustment disorder, and PTSD, related to stressful experiences during active service. Service connection may be established for disability resulting from personal injury or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2007). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. See 38 C.F.R. § 3.304(f) (2007). Service treatment records document findings of somnambulism. Service personnel records, including the veteran's DD Form 214, detail that he had active service in the United States Navy from April 1988 to April 1992 and was attached to the USS Harry E. Yarnell during this time period. The veteran testified at a videoconference hearing in July 2007 that he had been treated for multiple psychiatric treatment disorders after separation from active service. He reported that his service-connected somnambulism and dysthymia disability had not really increased in severity but did involve additional symptomatology. The veteran also indicated that his claimed PTSD was related to in-service stressful experiences, including being diagnosed with a sleepwalking disorder during service as well as being aboard a ship during a firing exercise when a guided missile detonated on the launcher. After obtaining additional information from the veteran concerning his claimed stressful experiences, the RO should undertake appropriate action to attempt to independently verify the occurrence of the veteran's claimed stressor through the U.S. Army and Joint Services Records Research Center (JSRRC) (and any other appropriate source). VA's duty to assist the veteran includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). See also Snuffer v. Gober, 10 Vet. App. 400 (1997). In view of the foregoing, the Board finds that further examination of the veteran is necessary. See 38 C.F.R. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). The appellant is hereby notified that it is his responsibility to report for any examination and to cooperate in the development of the case, and that the consequences of failure to report for a VA examination without good cause may include denial of the claim. See 38 C.F.R. §§ 3.158, 3.655 (2007). The RO should also obtain and associate with the claims file all outstanding VA records. The claims file reflects that the veteran has received medical treatment from the VA Medical Centers (VAMC) in Beckley, Virginia; Marion, Indiana; Pittsburgh, Pennsylvania; Battle Creek, Michigan; and Richmond, Virginia. Any additional records from those facilities should be obtained. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC/RO should also request that the veteran provide authorization to enable it to obtain treatment records from the local hospital that treated him for obsessive compulsive disorder shortly after separation from active service. Accordingly, the case is REMANDED for the following actions: 1. The AMC/RO should contact the veteran and obtain the names, addresses and approximate dates of treatment for all medical care providers, VA and non-VA, that treated the veteran for his claimed acquired psychiatric disorders as well as his service-connected somnambulism and dysthymia since April 1992. Of particular interest are any outstanding records of evaluation and/or treatment of the veteran's claimed acquired psychiatric disorders as well as his service-connected somnambulism and dysthymia from: 1) Richmond VAMC, from November 2005 to the present; 2) Marion VAMC, from October 1997 to the present; 3) Pittsburgh VAMC, from January 1998 to January 1999; 4) Battle Creek VAMC, from January 2002 to June 2003; and 5) Beckley VAMC, from November 2006 to the present. The AMC/RO should specifically request that the veteran furnish authorization to enable VA to obtain all records of his treatment and evaluation from the local hospital for obsessive compulsive disorder shortly after separation from active service. After the veteran has signed the appropriate releases, those records not already associated with the claims folder, should be obtained and associated with the claims folder. The AMC/RO should also specifically request that the veteran provide information (dates, ship name, persons involved) concerning his claimed stressors, included the firing exercise when a missile detonated on his ship. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the veteran, a notation to that effect should be inserted in the file. The veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the veteran the opportunity to obtain and submit those records for VA review. 2. If sufficient information is provided concerning the veteran's claimed stressors, the AMC/RO should undertake necessary action to attempt to verify the occurrence of the veteran's alleged in- service stressful experiences. The AMC/RO should forward to JSRRC (and any other appropriate source) all supporting evidence (to include any probative evidence submitted by the veteran). If JSRRC's research of available records for corroborating evidence leads to negative results, the AMC/RO should notify the veteran and his representative, and afford them the opportunity to respond. The AMC/RO should also follow up on any additional action suggested by JSRRC or any other appropriate source. 3. After associating with the claims file all available records and/or responses received pursuant to the above- requested development, the AMC/RO should prepare a report detailing the nature of any specific in-service stressful experience(s) deemed established by the record. This report is then to be added to the veteran's claims file. 4. Thereafter, the veteran should be scheduled for a VA psychiatric examination to the current degree of severity of his service-connected somnambulism and dysthymia as well as to determine the etiology of any other currently diagnosed acquired psychiatric disorder, to include PTSD. All indicated tests and studies are to be performed, and all currently diagnosed psychiatric disorders should be clearly identified. The claims folder must be made available to and reviewed by the examiner. The examiner should also clearly identify all current psychiatric disability(ies), to include a specific determination as to whether the diagnostic criteria for PTSD are met. In rendering such determination, the examiner is instructed that only verified stressors (including sleepwalking during active service and any other stressor verified by the AMC/RO), may be considered for the purpose of determining whether the veteran has experienced in-service stressor(s) sufficient to have resulted in PTSD. If a diagnosis of PTSD is deemed appropriate, the examiner must identify the specific stressor(s) underlying the diagnosis, and should comment upon the link between the current symptomatology and the veteran's verified stressor(s). For each diagnosed psychiatric disability other than PTSD, the physician should render an opinion, consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that such disability is the result of disease or injury incurred in or aggravated by the veteran's military service. If the evidence currently supports a diagnosis of any acquired psychiatric disorder (to include PTSD), the examiner is asked to state an opinion as to what portion of the veteran's overall mental/psychiatric impairment is attributable to his service-connected somnambulism and dysthymia as opposed to other non-service-connected pathology. Such distinction should be made in terms of specific symptomatology that is attributable to one or another disorder, and in terms of GAF score. The examiner is asked to assign an overall GAF score, as well as a GAF score which covers only impairment due to the service-connected somnambulism and dysthymia. The examiner should also provide an opinion concerning the impact of the service-connected somnambulism and dysthymia on the veteran's ability to work. 5. The veteran must be given adequate notice of the date and place of any requested examination(s). A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The veteran is to be advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claims. 6. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought on appeal remains denied, the veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. 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. 2007). ______________________________________________ LLOYD M. CRAMP Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs