Citation Nr: 0812651 Decision Date: 04/16/08 Archive Date: 05/01/08 DOCKET NO. 97-23 957A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cheyenne, Wyoming THE ISSUE Entitlement to service connection for chronic fatigue syndrome. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESSES AT HEARING ON APPEAL Appellant and his mother ATTORNEY FOR THE BOARD J. Parker, Counsel INTRODUCTION The veteran served with the Army National Guard of Wyoming from 1974 to 1997, including during various periods of active duty from April 1974 to June 1974, May 1979 to October 1979, and in November 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1997 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming. The veteran appeared and testified at personal hearing at the RO in October 1997 and June 2000. Transcripts of the hearings have been added to the record. This case was remanded to the RO for additional development in November 2001 and May 2003. In August 2007, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded a March 2004 Board decision. The March 2004 Board decision was vacated and remanded by the Court because of inadequate notice under the Veterans Claims Assistance Act of 2000 (VCAA). The appeal is REMANDED to the agency of original jurisdiction (AOJ) via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). Additionally, during the pendency of this appeal, the Court issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the VA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim, including the degree of disability and the effective date of an award. In the present appeal, the veteran was not provided with notice of the type of evidence necessary to establish an effective date or a disability rating, if service connection is granted on appeal. On remand, the AOJ must provide such notice. A March 2004 Board decision denied the claim for service connection for chronic fatigue syndrome. In August 2007, the Court vacated and remanded the March 2004 decision to the Board. The Court's order reflects the March 2004 Board decision was vacated and remanded because the veteran was not given adequate notice under the Veterans Claims Assistance Act of 2000. The Court reasoned that the Board impermissibly relied on decisional documents (rating decision) and post- decisional documents (statement of the case, supplemental statements of the case) to find VCAA notice, and presumed that the veteran had not been prejudiced by the lack of adequate notice, and that VA had failed to rebut the presumption of prejudice. On the question of adequacy of notice, the Court did not address the adequacy of VA notice letters to the veteran sent in April 2001, January 2002, and June 2003; however, in light of the Court's ultimate finding - that VCAA notice to the veteran was inadequate - it appears the Court implicitly found that that the April 2001, January 2002, and June 2003 VA notice letters to the veteran were not alone adequate VCAA notice. In light of the Court's finding of inadequate VCAA notice to date, the only way to insure adequate VCAA notice is to again remand for fully compliant VCAA notice letter to be sent to the veteran. Accordingly, the case is REMANDED for the following action: 1. The AOJ must send the appellant a VCAA notice letter regarding the issue of service connection for chronic fatigue syndrome that complies with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159. In addition to the other notices, the notice letter should specifically advise the veteran that 1) on the question of whether you have a current disability of chronic fatigue syndrome, you should provide competent medical evidence of a current diagnosis of the symptoms you claim are manifestations of chronic fatigue syndrome, and 2) on the question of relationship of current disability to service, you should obtain and submit a written medical opinion that relates your current symptoms claimed as chronic fatigue syndrome to any in-service injury, disease, or event, including during service in Honduras. For any medical professional that has told you that the current symptoms you claim as chronic fatigue syndrome are related to any in-service injury or disease, you should obtain a written opinion from that medical professional and submit it to VA. In addition, the AOJ must send the appellant a corrective notice that explains the information and evidence not of record needed to establish an initial disability rating and an effective date, if service connection is granted on appeal, as outlined by the Court in Dingess, supra. The claims file must include documentation that the AOJ has complied with VA's duties to notify and assist a claimant. 2. Following the above development, the AOJ should readjudicate the claim for service connection for chronic fatigue syndrome. If the benefit sought on appeal is not granted, an appropriate supplemental statement of the case should be issued to the veteran and his attorney. The veteran and his attorney should be afforded an opportunity to respond to the supplemental statement of the case before the claim folder is returned to the Board. The purpose of this remand is to comply with the Court's August 2007 order and to provide additional notice to the veteran. The appellant and his attorney may submit additional evidence and argument on the matter 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). _________________________________________________ A. BRYANT 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) (2007).