Citation Nr: 0813723 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-27 267 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for fibromyalgia. 2. Entitlement to service connection for chronic lupus. 3. Entitlement to service connection for a chronic bilateral upper and lower extremity disorder. 4. Entitlement to an increased disability evaluation for the veteran's chronic dorsal (thoracic) strain and injury residuals, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The veteran had certified active service from September 1984 to October 1987 and from June 1991 to November 1991 and additional duty with the Army National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision by the Cleveland, Ohio, Regional Office (RO) which denied service connection for fibromyalgia, chronic lupus, and a chronic bilateral upper and lower extremity disorder and denied an increased disability evaluation for the veteran's dorsal (thoracic) strain and injury residuals. As to the issue of whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for fibromyalgia, the Board is required to consider the question of whether new and material evidence has been received to reopen the veteran's claim without regard to the RO's determination in order to establish the Board's jurisdiction to address the underlying claim and to adjudicate the claim on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). The United States Court of Appeals for Veterans Claims (Court) has clarified that while there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute a single claim. Robinson v. Mansfield, 21 Vet. App. 545 (2008); Roebuck v. Nicholson, 20 Vet.App. 307, 313 (2006). This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the veteran if further action is required on her part. REMAND Service medical records dated in 1992 and 1993 indicate that the veteran was an active member of the Ohio Army National Guard. The veteran's complete periods of active duty, active duty for training, and inactive duty for training with the Ohio Army National Guard have not been verified. A January 2006 VA treatment record states that the veteran complained of chronic back pain. She reported receiving ongoing treatment from a Dr. Kates and treatment from Edgar Jackson, M.D., who recently retired. Clinical documentation of the cited treatment is not of record. The VA should obtain all relevant military, VA, and private treatment records which could potentially be helpful in resolving the veteran's claim. Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990). Accordingly, this case is REMANDED for the following action: 1. Review the claims file and ensure that all notification and development action required by the Veterans Claims Assistance Act of 2000, (VCAA) is completed. In particular, the RO should ensure that the notification requirements and development procedures contained in 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2006); and the Court's holdings in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Kent v. Nicholson, 20 Vet.App. 1 (2006); and Vazquez-Flores v. Peake, and Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008) are fully met. 2. Then contact the veteran and request that she provide information as to all post-service treatment of her chronic fibromyalgia, lupus, upper and lower extremity disorder and treatment of her service-connected dorsal (thoracic) stain and injury residuals sinusitis after 2002 including the names and addresses of all health care providers. Upon receipt of the requested information and the appropriate releases, the RO should contact Edgar Jackson, M.D., Dr. Kates, and all identified other identified health care providers and request that they forward copies of all available clinical documentation pertaining to treatment of the veteran, not already of record, for incorporation into the record. 3. Then contact the National Personnel Record Center and/or the appropriate service entity and request that (1) it verify the veteran's periods of active duty, active duty for training, and inactive duty for training with the Ohio Army National Guard and (2) forward all available service medical records associated with such duty for incorporation into the record. 4. Then schedule the veteran for a VA examination for compensation purposes in order to determine the current nature and etiology of her fibromyalgia and claimed chronic lupus and upper and lower extremity disability. All indicated tests and studies should be accomplished and the findings then reported in detail. The examiner or examiners should specifically state whether the veteran has chronic lupus. The examiner or examiners should advance opinions as to: a. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that the veteran's chronic fibromyalgia had its onset during active service; otherwise originated during active service/active duty/active duty for training; is etiologically related to the veteran's service in Southwest Asia; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disability. b. If chronic lupus is diagnosed, whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that such disability had its onset during active service; otherwise originated during active service/active duty/active duty for training; is etiologically related to the veteran's service in Southwest Asia; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disability. c. Whether it is more likely than not (i.e., probability greater than 50 percent); at least as likely as not (i.e., probability of 50 percent); or less likely than not (i.e., probability less than 50 percent) that any identified chronic upper and/or lower extremity had its onset during active service; otherwise originated during active service/active duty/active duty for training; is etiologically related to the veteran's service in Southwest Asia; and/or is etiologically related to and/or increased in severity beyond its natural progression due to his service-connected disability. Send the claims file to the examiner or examiners for review. The examination report should specifically state that such a review was conducted. 5. Then readjudicate the issues of whether new and material evidence has been received to reopen the veteran's claim of entitlement to service connection for fibromyalgia; service connection for chronic lupus and a chronic upper and lower extremity disorder; and an increased evaluation for her dorsal (thoracic) strain and injury residuals. If the benefits sought on appeal remain denied, the veteran and her accredited representative should be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The veteran should be given the opportunity to respond to the SSOC. The veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. _________________________________________________ J. T. Hutcheson Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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).