Citation Nr: 1046167 Decision Date: 12/09/10 Archive Date: 12/20/10 DOCKET NO. 97-03 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an increased evaluation for residuals of a head injury, to include a rating in excess of 30 percent for neurological manifestations of a pain disorder and a separate rating for chronic fatigue syndrome. (The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is the subject of a separate decision by the Board of Veterans' Appeals (Board).) REPRESENTATION Appellant represented by: Jeany Mark, Attorney at law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1944 to June 1946. This matter was originally before the Board on appeal from a November 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. A March 2004 Board decision denied the Veteran an increased rating for a pain disorder, manifested by headaches, associated with psychological factors and a history of traumatic encephalopathy. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In March 2005, the Court issued an order that granted a Joint Motion for Remand to the Board (Joint Motion) filed by counsel for both parties, vacated the Board's March 2004 decision, and remanded the matter of the evaluation of the pain disorder to the Board for action in compliance with the Joint Motion. In November 2005 the Board remanded the matter to the RO for additional development. In June 2006, a Travel Board hearing was held before the undersigned on the issue of service connection for depression. The Veteran was represented at that hearing by his agent. A transcript of the hearing is associated with the claims file. In September 2006, the Board granted a motion to advance the Veteran's case on the Board's docket due to his advanced age. In October 2006, the Board denied a rating in excess of 30 percent for pain disorder. The Veteran appealed this decision to the Court. In September 2007, the Court issued an order that vacated the October 2006 Board decision and remanded the matter on appeal for readjudication consistent with instructions outlined in a September 2007 Joint Motion by the parties. In July 2008, the Board remanded the case for further development of the evidence. In May 2009, the Board denied a rating in excess of 30 percent for neurological manifestations of a pain disorder and separately granted service connection for a chronic adjustment disorder with mixed emotional features. The Veteran appealed the denial of the increased rating to the Court. In June 2010, the Court issued an order that vacated the increased rating portion of the May 2009 Board decision and remanded the matter on appeal for readjudication consistent with the instructions outlined in the June 2010 Joint Motion by the parties. The Board notes that the issue was originally characterized as an increased rating for pain disorder, as manifested by headaches associated with psychological factors and a history of traumatic encephalopathy. The issue was then recharacterized by the Board in May 2009 as two issues (1) an increased rating for neurological manifestations of a pain disorder and (2) a separate service connection issue for a related psychiatric disability. Given that the Veteran initially claimed a higher rating for the broadly-defined "residuals of a head injury" (see November 1994 statement from the Veteran); the fact that the Board has separately granted service connection for a chronic adjustment disorder with mixed emotional features; and the fact that the Board has remanded the case for further development on several occasions to address whether the Veteran has chronic fatigue syndrome related to his service-connected neurological disorder or his head injury in service, the issue is more appropriately characterized as above. The evidence shows the Veteran may have three separate disabilities - a neurological pain disorder manifested by headaches, a separate psychiatric diagnosis, and a separate immune disorder. Hence, the Board has recharacterized the issue accordingly. This recharacterization of the issue does not prejudice the Veteran as it potentially provides for separately compensable ratings based on neurological, psychiatric, and immunological disabilities. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the VARO. VA will notify the appellant if further action on his part is required. REMAND The June 2010 Joint Motion by the parties directed that remand was warranted in order for VA to respond to the Veteran's attorney's December 2008 request for a copy of the October 2008 VA examination reports and her request for additional time to respond to the December 2008 supplemental statement of the case (SSOC). However, subsequent (November 2010) correspondence from the Veteran's attorney clearly demonstrates that the Veteran's attorney has obtained copies of the October 2008 VA examination reports, in addition to the November 2008 addendum to the neurological examination report; her November 2010 correspondence made several references to the examination reports and addendum and also made arguments with respect to the adequacy of those reports. The Veteran's attorney's November 2010 correspondence notes that the November 2008 addendum did not provide a rationale for the opinion that it was more likely than not that the Veteran does not have chronic fatigue syndrome, and is therefore inadequate. As noted above, the Board has remanded the case for further development on several occasions to address whether the Veteran has chronic fatigue syndrome related to his service-connected neurological disorder or his in-service head injury. Nevertheless, the Board finds that further development of medical evidence in this matter is necessary to afford the Veteran every consideration (in particular as specifically sought by his attorney). A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.) 1. The VA should obtain an addendum opinion, if possible from D. Ephram, the VA physician who examined the Veteran in October 2008 and provided an addendum opinion in November 2008. Dr. Ephram should provide a detailed explanation of the rationale for his November 2008 opinion that "more likely than not the patient does not suffer from a chronic fatigue syndrome in association with his history of headaches and remote head trauma." If Dr. Ephram is not unavailable to provide the explanation, the RO should arrange for the Veteran to undergo an infectious, immune, and nutritional disabilities examination to determine whether he has a diagnosis of chronic fatigue syndrome, and, if so, whether it is related to his service or to his service-connected pain and/or psychiatric disorders, to include whether his service-connected disorders aggravate said condition. The Veteran's claims files must be reviewed by the examiner in conjunction with the examination. The examiner should provide an opinion as to whether the record and clinical examination reflect that the Veteran has chronic fatigue syndrome which is at least as likely as not (50% or more) associated with service or his headache pain syndrome and/or his adjustment disorder with mixed emotional features. If so, any fatigue syndrome symptoms should be described in detail, both in terms of their nature and their frequency (and, if possible, quantified in terms of the percentage by which they restrict the Veteran's routine daily activities, and/or the lengths of any periods of time of incapacitation per year). 2. The RO should ensure that the development sought above is completed in its entirety, then adjudicate the separate issue of whether service connection for chronic fatigue syndrome is warranted, and re- adjudicate the increased rating claim. If either remains denied, the RO should issue an appropriate SSOC and afford the Veteran and his attorney ample opportunity to respond. The case should then be returned to the Board, if in order, for further 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 or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ GEORGE R. SENYK 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).