Citation Nr: 1324742 Decision Date: 08/05/13 Archive Date: 08/13/13 DOCKET NO. 09-27 814 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for chronic fatigue syndrome (CFS). 2. Entitlement to service connection for gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for reflex sympathetic dystrophy of the hands, also referred to as complex regional pain syndrome. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran had active service from August 1989 to August 1991, including service in the Persian Gulf; he also served in the National Guard. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran and his wife testified at a travel board hearing before the undersigned Veterans Law Judge sitting at the RO in April 2013, and a copy of the transcript is of record. An October 2011 rating decision granted service connect for posttraumatic stress disorder and major depressive disorder and assigned a 100 percent rating effective November 20, 2008; service connection for sleep apnea was denied by this rating decision. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Veteran testified at his April 2013 hearing that he has been treated for the disabilities at issue at the Ann Arbor and Battle Creek VA Medical Centers (MC), the only treatment reports on file are from the Ann Arbor VAMC. He also testified that he received treatment from several private doctors, the records of which are not on file. A VA Gulf War examination was conducted in October 2007. Although the examiner concluded that the Veteran's CFS and GERD were at least as likely as not due to service, the examiner did not provide a clear rationale for this opinion with reference to the medical evidence of record. Additionally, the examiner concluded that the Veteran had had CFS ever since he returned from the Gulf War even though the examiner noted that the Veteran said that his CFS started in January 1990 and the Veteran had indicated that he was not sent to the Gulf until September 1990. The Veteran testified in April 2013 that he actually did not have symptoms of CFS until after he started serving in the Gulf. The Board would also note that the VA examiner in October 2007 referred to treatment reports dated in September 2007 from the rheumatology clinic at the University of Michigan hospital, which are not of record. No nexus opinion is of record with respect to whether the Veteran's reflex sympathetic dystrophy is causally related to service. The Court has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also 38 C.F.R. § 4.2 (2012) (noting that if the examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). Thus, another VA medical opinion is required in this case relative to the etiology of the disabilities at issue. Accordingly, the case is REMANDED for the following action: 1. The AMC/RO will ask the Veteran to provide the names and addresses, as well as the dates of treatment, of all health care providers, both VA and non-VA, who have seen or treated him for CFS, GERD, and/or reflex sympathetic dystrophy since service discharge, to include treatment at the Battle Creek VAMC, and from Drs. McCance, Sies, Toner, Poedal, and Solanki. After securing the necessary authorization, the AMC/RO must attempt to obtain copies of any pertinent treatment records identified by the Veteran that have not been previously secured. If VA is unable to secure these records, VA must notify the Veteran and (a) identify the specific records VA is unable to obtain; (b) briefly explain the efforts that VA made to obtain those records; (c) describe any further action to be taken by VA with respect to the claim; and (d) notify him that he is ultimately responsible for providing the evidence. 38 U.S.C.A. § 5103A(b)(2) (West 2002); 38 C.F.R. § 3.159(e)(1) (2012). 2. The AMC/RO will also obtain and associate with the claims file the September 2007 treatment report from the rheumatology clinic at the University of Michigan hospital referred to in the October 2007 VA examination report. 3. Following completion of the above, the AMC/RO must arrange for the examiner who provided the opinion in October 2007, or an appropriate substitute, to provide an addendum to the previous opinion. The claims files and all records on Virtual VA must be made available to the examiner, and the examiner must specify in the examination report that the claims files and Virtual VA records have been reviewed. The examiner must specify the dates encompassed by the Virtual VA records that were reviewed. Following a review of the relevant evidence in the claims file, including both the Veteran's service treatment records and the post-service evidence, the examiner is asked to again opine whether it is at least as likely as not that the Veteran's CFS and GERD were incurred in or aggravated beyond normal progression by service. If aggravation is found, the examiner should specifically address the baseline level of disability before the disability was aggravated by service and point out the clinical records supporting the conclusion. The examiner is requested to provide a thorough rationale for all opinions provided, to include reference to the medical evidence of record. If the examiner is unable to provide an opinion without resorting to speculation, he or she must explain why a definitive opinion cannot be provided. In particular, the examiner must specify whether an opinion could not be rendered because the limits of medical knowledge have been exhausted and must discuss why additional testing or information would not lead to a conclusive opinion. If it is determined that a current examination is needed in order to provide the requested opinion, a VA examination must be conducted. All pertinent symptomatology and findings must be reported in detail. The AMC/RO will notify the Veteran of his responsibility to report for any examination scheduled and the consequences for failure to report for an examination without good cause. See 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation will be obtained which shows that notice scheduling the examination was sent to the last known address. It will also be indicated whether any notice that was sent was returned as undeliverable. It would be helpful if the examiner would use the following language, as may be appropriate: 'more likely than not' (meaning likelihood greater than 50%), 'at least as likely as not' (meaning likelihood of at least 50%), or 'less likely than not' or 'unlikely' (meaning that there is a less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 4. The AMC/RO will schedule the Veteran for the appropriate VA examination to ascertain whether he has reflex sympathetic dystrophy due to service. The examiner must review the entire record in conjunction with the examination. All studies or tests deemed necessary should be conducted. After a thorough review of the Veteran's records, including his service treatment records, and a full clinical evaluation, the examiner should answer the following question and identify the basis upon which the opinion is based: If a current diagnosis of reflex sympathetic dystrophy or complex regional pain syndrome is rendered, is it at least as likely as not, (i.e., 50 percent or greater probability), that the disability was incurred in or aggravated beyond normal progression by service. If aggravation is found, the examiner should specifically address the baseline level of disability before it was aggravated by service and point out the clinical records supporting the conclusion. The examiner is requested to provide a thorough rationale for all opinions provided, to include reference to the medical evidence of record. The AMC/RO will notify the Veteran of his responsibility to report for any examination scheduled and the consequences for failure to report for an examination without good cause. See 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for a scheduled examination, documentation will be obtained which shows that notice scheduling the examination was sent to the last known address. It will also be indicated whether any notice that was sent was returned as undeliverable. If the requested opinion(s) cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative, including noting whether there is additional information that could enable the examiner to provide the necessary opinion or whether the inability to provide the opinion was based on the limits of medical knowledge. It would be helpful if the examiner would use the following language, as may be appropriate: 'more likely than not' (meaning likelihood greater than 50%), 'at least as likely as not' (meaning likelihood of at least 50%), or 'less likely than not' or 'unlikely' (meaning that there is a less than 50% likelihood). The term 'at least as likely as not' does not mean 'within the realm of medical possibility.' Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of that conclusion as it is to find against it. 5 Thereafter, the AMC/RO will review the claims file and ensure that the foregoing development actions have been conducted and completed in full. If any development is incomplete, appropriate corrective action is to be implemented. See 38 C.F.R. § 4.2 (If the findings on an examination report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). 6 After the development requested above has been completed to the extent possible, the AMC/RO should again review the record and readjudicate the claims for entitlement to service connection for CFS, GERD, and reflex sympathetic dystrophy. If any of the benefits sought on appeal remains denied, the Veteran and representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). The RO and the Veteran are advised that the Board is obligated by law to ensure that the RO complies with its directives, as well as those of the appellate courts. It has been held that compliance by the Board or the RO is neither optional nor discretionary. Where the remand orders of the Board or the Courts are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ U. R. POWELL 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 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).