Citation Nr: 1318899	
Decision Date: 06/11/13    Archive Date: 06/21/13

DOCKET NO.  10-14 958	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an initial rating greater than 10 percent for posttraumatic stress disorder (PTSD) with major depressive disorder, prior to March 26, 2010.

2.  Entitlement to an initial rating greater than 30 percent for PTSD with major depressive disorder, from March 26, 2010, through April 1, 2012.

3.  Entitlement to an initial rating greater than 70 percent for PTSD with major depressive disorder, beginning April 2, 2012.

4.  Entitlement to an initial rating greater than 40 percent for chronic fatigue syndrome.

5.  Entitlement to service connection for a disability manifested by lupus-like symptoms.



REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. M. Kirby, Counsel


INTRODUCTION

The Veteran served on active duty from December 1984 to September 1992, to include service in Southwest Asia from August 1990 to October 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and September 2008 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO).  The Veteran testified at a November 2011 hearing by the undersigned held sitting at the RO.  A transcript of that hearing is associated with the claims file.

The issue of entitlement to service connection for a disability manifested by lupus-like symptoms is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center in Washington, D.C.  VA will notify the Veteran if further action is required on his part.




FINDINGS OF FACT

1.  From February 9, 2007 through March 25, 2010, the Veteran's PTSD with major depressive disorder was manifested by poor sleep, little to no appetite, depression or depressed feelings, difficulty concentrating, difficulty with memory, trouble socializing with others, frequent marital conflict with his wife, and difficulty with work supervisors and peers. 

2.  From March 26, 2010 through April 1, 2012, the Veteran's PTSD with major depressive disorder was manifested by depression, anxiety, hypervigilance, reduced concentration ability, anhedonia, nightmares and marital conflict.  

3.  Beginning April 2, 2012, the Veteran's PTSD with major depressive disorder is manifested by deficiencies in most areas, but total social and occupational impairment is not shown.

4.  The Veteran's chronic fatigue syndrome is manifested by nearly constant fatigue restricting his routine daily activities by 50 percent.


CONCLUSIONS OF LAW

1.  The criteria for an initial rating of 50 percent, but no greater, for PTSD with major depressive disorder have been met from February 9, 2007 through April 1, 2012.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411-9434 (2012).

2.  From April 2, 2012, the criteria for a rating greater than 70 percent for PTSD with major depressive disorder have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411-9434 (2012).


3.  The criteria for an initial rating greater than 40 percent for chronic fatigue syndrome have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.88a, 4.88b, Diagnostic Code 6354 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).  March 2007, April 2010, and August 2010 letters satisfied the duty to notify provisions, to include notifying the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

Concerning the duty to assist, the Veteran's service treatment records, VA treatment records, and identified private medical records have been obtained; the Veteran has not identified any additional private treatment records pertinent to his appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  In addition, the Veteran has been afforded multiple VA examinations. 

The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims for increased ratings for PTSD with major depression and chronic fatigue syndrome.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the VLJ identified the issues and asked specific questions directed at eliciting information to help substantiate the claims.  Additionally, the Veteran volunteered his treatment history and symptoms.    Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.   The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary. 

Review of the record does not indicate that additional evidence pertinent to the issues adjudicated in this decision is available, but not associated with the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication VA did not provide sufficient notice or assistance, such that it reasonably affects the outcome of the case, the Board finds that any such lack of sufficient notice is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009).  

Analysis

In adjudicating the claims below, the Board has reviewed all of the evidence in the Veteran's claims file, to include both his paper claims file and those records available through Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are:  interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999).


PTSD with Major Depressive Disorder

Service connection for PTSD with major depressive disorder was established by the February 2008 rating decision.  A 10 percent evaluation was assigned under Diagnostic Code 9411-9434, effective February 9, 2007.  The Veteran appealed the initial evaluation assigned.  The RO subsequently assigned a 30 percent rating effective March 26, 2010 and a 70 percent rating beginning April 2, 2012.  Both Diagnostic Code 9411 and Diagnostic Code 9434 are subsumed into the General Rating Formula for Mental Disorders (General Rating Formula), which assigns a 10 percent rating when the medical evidence of record shows occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms; or, when symptoms are controlled by continuous medication.  See 38 C.F.R. § 4.130, General Rating Formula. 

A 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, and recent events).  Id.  A 50 percent rating is warranted where the disorder is manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  Id.

A 70 percent rating is warranted where the disorder is manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and an inability to establish and maintain effective relationships.  Id.  The maximum 100 percent rating is warranted where the disorder is manifested by total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id.

The Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.  Richard v. Brown, 9 Vet. App. 266, 267 (1996).  A GAF score of 21-30 contemplates behavior that is considerably influenced by delusions or hallucinations or serious impairment, in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends).  American Psychiatric Association, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994) (DSM-IV).  A GAF score of 31-40 is defined as exhibiting some impairment in reality testing or communication (speech is at times illogical, obscure, or irrelevant), or any major impairment in several areas, such as work or school, family relations, judgment, thinking or mood, (a depressed man that avoids friends, neglects family, and is unable to work; a child that frequently beats up younger children, is defiant at home, and is failing at school).  Id.  A GAF score of 41-50 is assigned where there are serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).  A GAF score of 51-60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.  Id.  A GAF score does not automatically equate to any particular percentage in the Rating Schedule; rather, it is but one factor to be considered in conjunction with all the other evidence of record.  38 C.F.R. §§ 4.2, 4.6 (2012).

From the February 9, 2007 award of service connection through March 25, 2010, the Veteran repeatedly reported experiencing poor sleep, having little to no appetite.  While not noted to be constant or near-constant, the Veteran reported experiencing depression or depressed feelings at almost every VA outpatient visit.  Importantly, a January 2008 VA treatment record noted that the Veteran's stress and depression were prominent causative factors in the Veteran's cognitive symptoms, such as difficulty concentrating and difficulty with memory.  He was also noted to have trouble socializing with others; he had only one friend, and had frequent marital conflict with his wife.  Further, the May 2007 VA examiner found that he did not get along well with his supervisors or his peers, and that the psychiatric symptoms played a role in the Veteran's decision to take a demotion at work.  Although the GAF scores assigned ranged between 55 and 65, suggesting a mild to moderate severity of the Veteran's psychiatric disability, the Board finds that the symptomatology projects a level of social and occupational impairment consistent with reduced reliability and productivity such that  that a 50 percent rating is warranted.  Similarly, although the May 2007 VA examiner answered the VA examination questionnaire in the affirmative when asked if the Veteran had total social and occupational impairment, her explanatory narrative, which followed this statement, makes it clear that this is not the case.  Rather, his inability to get along with coworkers, plus the effect of the illness on his family, more closely contemplates the "difficulty in establishing and maintaining effective work and social relationships" rating criteria.  The Board finds the narrative discussion and examination findings significantly more probative than a response of "yes" to total social and industrial impairment, especially since the findings on examination, including the GAF score assigned by the examiner, are not consistent with total social and industrial impairment as defined in the Rating Schedule and the Veteran was still employed at this time.  Accordingly, the evidence supports a 50 percent rating, but no higher for the period prior to March 26, 2010.

From March 26, 2010 through April 1, 2012, the RO had assigned a 30 percent rating.  During this period, the Veteran's psychiatric disability was characterized by depression, anxiety, hypervigilance, reduced concentration ability, anhedonia, nightmares and marital conflict.  However, he repeatedly denied experiencing suicidal or homicidal ideations or psychotic thoughts, and none were found on mental status examination.  GAF scores during this stage of the appeal period ranged from 50 to 70, showing that the Veteran's symptoms were intermittently severe; however, review of the records reflects that the exacerbations appear to have coincided with periods during which the Veteran's wife stopped taking her own psychiatric medications and her own psychiatric condition was not controlled, such as in September 2011, October 2011, December 2011, and February 2012 VA treatment records.  Comparatively, during the time where she was regularly taking her medication, the Veteran's reported levels of depression, anxiety, and stress were lower, as noted in a November 2011 VA treatment record and the February 2011 VA examination report.  Most critically, while the Veteran reported not having a desire to socialize at the February 2011, he simultaneously noted that he had a military friend he kept in touch with; his relationship with his wife, while difficult, is remarkable for his continued desire to engage in marital counseling in an effort to keep the marriage intact.  Accordingly, for the stage of the appeal period from March 26, 2010, to April 1, 2012, a 50 percent rating is also warranted.

Beginning April 2, 2012, VA outpatient records dated during this period reflect that a GAF score of 60 was consistently assigned.  The Veteran also repeatedly denied experiencing homicidal or suicidal ideations or psychosis, and while noting significant difficulty and conflict with his wife, mother, and brothers, indicated some degree of a relationship with them.  He also talked about having a friend with whom he periodically spoke on the phone.  To the extent that this limited evidence shows serious occupational and social impairment, neither total social nor total occupational impairment is established, especially in light of the Veteran's ability to engage with the treating clinician as well as keep his appointments and anticipate conflicts (such as those between his mental health appointments and his court appointments concerning his marital relationship).  Accordingly, the evidence beginning April 2, 2012 does not establish that there is total social and occupational impairment such that the maximum 100 percent rating is warranted.  

The preponderance of the evidence is against the assignment of a rating in excess of those assigned, for any stage of the appeal period.  The Board acknowledges that the RO has determined that a 70 percent rating is warranted from April 2, 2012, despite VA treatment records during that period showing a GAF score of 60, which is consistent with only moderate impairment.  Although the Board will not disturb the award of the 70 percent rating, the Board is not required to consider similar symptoms or GAF scores as dispositive of a 70 percent evaluation prior to April 2, 2012. "[T]he Board, as the final trier of fact, is not constrained by favorable determinations below."  McBurney v. Shinseki, 23 Vet. App. 136, 139 (2009).  The Board, as fact finder, has determined, for the reasons set forth above, that the symptomatology presented during the course of the appeal does not warrant evaluations greater than those assigned.  Accordingly, an evaluation of 50 percent prior to April 2, 2012, and of 70 percent thereafter, for PTSD with major depressive disorder, is not warranted. 


In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against an evaluation in excess of 50 percent prior to April 2, 2012 and in excess of 70 percent thereafter, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


Chronic Fatigue Syndrome

Service connection for chronic fatigue syndrome was granted in the December 2007 rating decision, and an initial 40 percent rating assigned under the provisions of 38 C.F.R. § 4.88b , Diagnostic Code 6354.  Under that diagnostic code, chronic fatigue syndrome includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms, and assigns a 40 percent rating when the signs and symptoms of chronic fatigue syndrome are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year.  38 C.F.R. § 4.88b, Diagnostic Code 6354.  A 60 percent rating is assigned when the signs and symptoms of chronic fatigue syndrome are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level or; which wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year.  Id.  The maximum 100 percent rating is assigned when the signs and symptoms of chronic fatigue syndrome are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care.  Id.  Additionally, a Note to Diagnostic Code 6354 provides that chronic fatigue syndrome will be considered incapacitating only while it requires bed rest and treatment by a physician.

Review of the evidence reveals that the Veteran's chronic fatigue syndrome is appropriate rated as 40 percent disabling.  An August 2006 VA examination noted the Veteran complained of constant fatigue.  He reported that he had difficulty sleeping at night.  He stated that he was sleepy during the day and takes a nap every day.  He complained of difficulty concentrating and that he gave up exercise due to fatigue.  At the June 2007 VA examination, the Veteran reported having debilitating fatigue that was constant or nearly so.  He denied incapacitating episodes, however.  VA examiner found that the Veteran's fatigue was severe enough to reduce and/or impact his average daily activities by 50 percent.  It was noted fatigue lasted longer than 24 hours after exercise.  The VA treatment records during the course of the appeal reflect the Veteran's complaint of generalized, constant fatigue and low energy.  It was noted his difficulty sleeping was causing his daytime fatigue. However, no specific treatment for chronic fatigue syndrome was noted.  The Veteran testified at his November 2011 Board hearing that he tinkers throughout the day but takes periodic naps.  He stated he does not sleep at night.  

Upon review of the record, the Board finds that evidence reflects that the Veteran's activities have been reduced by a level of 50 percent as a result of chronic fatigue syndrome.  The Board notes the Veteran has multiple other service connected disabilities impacting his activity level including a psychiatric disability, headaches, fibromyalgia, joint disabilities and a gastrointestinal disorder. Thus, the Board can only consider the impact of his chronic fatigue syndrome on activity level when evaluating his chronic fatigue syndrome.  38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided).  As the VA examiner indicated that the Veteran's routine daily activities are restricted by 50 percent of the pre-illness level of activity, the Board finds a 40 percent evaluation is warranted under Diagnostic Code 6354.  

The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his chronic fatigue syndrome.  Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 40 percent for chronic fatigue syndrome. 


In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz, supra; Gilbert, supra.


Other Considerations

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the rating criteria contemplate the Veteran's psychiatric and chronic fatigue disabilities.  The rating criteria for psychiatric disabilities specifically focus on occupational and social impairment, and such impairment is not shown in a fashion that is not contemplated by that continuum.  See 38 C.F.R. § 4.130.  Similarly, the rating criteria for chronic fatigue syndrome contemplate a level of restriction of activities and periods of incapacitation; the Veteran has not alleged symptomatology that is both a manifestation of the chronic fatigue syndrome and also not contemplated within that criteria.  The rating criteria are therefore adequate to evaluate the Veteran's service-connected disabilities, and referral for consideration of extraschedular rating is not warranted.

The Board notes that the Court has held that a TDIU claim is part of an increased rating claim when such claim is raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, a claim of TDIU was adjudicated by the RO in a March 2011 rating decision.  The Veteran did not appeal that decision.  Moreover, the Board notes the Veteran is currently in receipt of a 100 percent combined schedular rating.  Accordingly, no further action pursuant to Rice is warranted.  


ORDER

From February 9, 2007 through April 1, 2012, entitlement to rating of 50 percent, but no greater, for PTSD with major depressive disorder is granted, subject to the applicable regulations concerning the payment of monetary benefits.

From April 2, 2012 entitlement to a rating greater than 70 percent for PTSD with major depressive disorder is denied.

Entitlement to an initial rating greater than 40 percent for chronic fatigue syndrome is denied.


REMAND

The record reflects that the Veteran reports symptomatology his VA and private physicians have characterized as "lupus-like."  However, laboratory and other testing have not resulted in a confirmed diagnosis of lupus, especially in light of the negative ANA testing.  Some of the Veteran's symptoms, including his chronic joint pain, headaches, and sleep difficulty, are also suggestive of some of the Veteran's currently service-connected disabilities, including migraine headaches, fibromyalgia, and shoulder, spine and knee disabilities.  The Veteran testified that this condition was also called a "connective tissue disorder".   It is unclear whether the Veteran actually suffers from lupus, or whether this "lupus-like"/connective tissue disorder is actually even a distinct disability from his already service-connected fibromyalgia and other service connected conditions.  Because these questions are medical in nature and cannot be resolved by the Board, remand is required so that a VA examination can be conducted and a medical nexus opinion obtained.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).

Relevant ongoing medical records should also be requested.  38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).

Accordingly, the issue of entitlement to service connection for a disability manifested by lupus-like symptoms is REMANDED for the following actions:

1.  Ask the Veteran to provide the names and addresses of all medical care providers who treated him for a lupus-like syndrome or connective tissue disorder.  After securing the necessary release, the RO/AMC should request any relevant records identified which are not duplicates of those already contained in the claims file.  In addition, obtain relevant VA treatment records dating since September 2012.

2.  Schedule the Veteran for a VA rheumatology examination by a physician to determine the nature of the claimed "lupus-like" syndrome/connective tissue disorder and to obtain an opinion as to whether such is related to service, to include as an undiagnosed illness.  The examiner is asked to review the entire claims file and conduct the appropriate medical/laboratory testing.  Following review of the claims file and examination of the Veteran, the examiner should respond to the following:

a.  Does the Veteran actually suffer from a "lupus-like" syndrome or connective tissue disorder that is a distinct entity from the already service-connected fibromyalgia and spine, shoulder, and knee disabilities?  Please provide the diagnosis, and indicate whether this disorder is at least as likely as not (50 percent probability or greater) related to his military service.

b.  If so, identify the manifestations of this "lupus-like" syndrome/connective tissue disorder.  Are there any manifestations that are distinct from the already service-connected fibromyalgia, chronic fatigue syndrome, joint disabilities, and psychiatric disorder?  

c.  If there is no actual diagnosed disability, is the "lupus-like" syndrome/connective tissue disorder an undiagnosed illness related to his Gulf War service?

d. The examiner must discuss the medical rationale of all opinions expressed.

3.  After undertaking the development above, readjudicate the Veteran's claim.  If any benefit sought on appeal remains denied, provide a Supplemental Statement of the Case to the Veteran and his representative, and an appropriate period of time in which to respond.  Then, return the appeal to the Board, if in order.

No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  All claims 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).



______________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs