Citation Nr: 1303495	
Decision Date: 02/01/13    Archive Date: 02/08/13

DOCKET NO.  09-35 171	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an rating in excess of 60 percent for service-connected fatigue and flu-like symptoms (also claimed as chronic fatigue syndrome) due to undiagnosed illness, to include a rating in excess of 10 percent prior to July 1, 2010.  

2.  Whether the 60 percent evaluation for fatigue and flu like symptoms (also claimed as chronic fatigue syndrome) due to undiagnosed illness, is permanent.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Catherine Cykowski, Counsel


INTRODUCTION

The Veteran had active duty service from August 1988 to August 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2008 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the Veteran if further action is required.


REMAND

The Veteran is currently pursuing a claim for an earlier effective date for the 60 percent rating for his chronic fatigue syndrome.  Of record is a letter in April 2008 from a Dr. Anthony Perry indicating that he had been treating the Veteran for his chronic fatigue syndrome.  It appears from statements made by the Veteran that Dr. Perry had been treating him with medication for several years at the point the letter was drafted.  Unfortunately, no treatment records from Dr. Perry appear to be of record, and it is unclear whether they were ever sought.  As such, the Board concludes that a remand is necessary.

Additionally, because the stability of a disability is one of the factors in determining the permanence of a rating, the permanence issue is inextricably intertwined with the increased rating issue.  Therefore, it too must be remanded.

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran identify all the medical professionals who have treated him for his chronic fatigue syndrome since 2006.  Then obtain any identified providers, to specifically include all treatment records from Dr. Perry from 2006 to the present.  A negative response should be requested if no records are available.  If no records are located, a letter should be sent to the Veteran pursuant to 38 C.F.R. § 3.156(e).

2.  Conduct any additional development that logically flows from the requested development.

3.  Then readjudicate the appeal.  If the claims remain denied, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate time for response. 

The Veteran has the right to submit additional evidence and argument on the 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. 2012).

_________________________________________________
MATTHEW W. BLACKWELDER
Acting 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) (2012).