Citation Nr: 1333720 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 10-14 578 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for irritable bowel syndrome (IBS). 2. Entitlement to a compensable rating for chronic tension headaches. 3. Entitlement to an initial rating in excess of 40 percent for fibromyalgia. 4. Entitlement to an effective date earlier than September 27, 2006 for the assignment of an initial 10 percent rating for IBS. 5. Entitlement to an effective date earlier than June 1, 1995, for the assignment of a noncompensable rating for chronic tension headaches. 6. Entitlement to an effective date earlier than September 27, 2006, for the assignment of an initial 40 percent rating for fibromyalgia. 7. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for memory loss, to include as due to an undiagnosed illness. 8. Entitlement to service connection for sleep apnea, to include as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Adams, Counsel INTRODUCTION The Veteran served on active duty from November 1984 to May 1995, including service in support of Operation Desert Shield Desert Storm from August 1990 to May 1995. These matters are on appeal from July 2007 and September 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran provided testimony at a hearing before a Decision Review Officer (DRO) at the RO in March 2009 and before the undersigned Veterans Law Judge in March 2013. Transcripts of both hearings have been associated with the claims file. At the conclusion of the March 2013 hearing, the record was held open for 60 days following the hearing to provide the Veteran with additional time and opportunity to submit medical evidence. However, no records have been received. An April 2010 rating decision increased the rating from 20 percent to 40 percent for the Veteran's fibromyalgia, effective September 27, 2006. A claimant is presumed to be seeking the maximum benefit available at law. AB v. Brown, 6 Vet. App. 35 (1993). While 40 percent is the maximum schedular rating for fibromyalgia, higher ratings are potentially available on an extraschedular basis. See 38 C.F.R. § 3.321(b), 4.71a, Diagnostic Code 5025 (2013). Accordingly, the claim for increase remains before the Board. The Board has reviewed the Veteran's physical claims file, and his electronic file through the "Virtual VA" system, to ensure a complete review of the evidence in this case. 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 Unfortunately, a remand is required in this case. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. In an August 2012 Statement of Accredited Representative in Appealed Case, the Veteran's representative indicated that the Veteran underwent a Disability Benefits Questionnaire (DBQ) and VA fibromyalgia examination in March 2012. However, the report of the March 2012 examination has not been associated with the Veteran's paper claims file or electronic file. Therefore, the Board finds that a remand is necessary so that any outstanding September 2012 VA examination report relating to the Veteran's fibromyalgia may be associated with the claims file, and if no such VA examination was ever performed, then the Veteran should be scheduled for a new VA examination. In addition, at the March 2013 hearing the Veteran testified that he receives VA treatment every 6 months at the VA Medical Center in Hines, Illinois. However, the most recent VA treatment records associated with his electronic claims file are dated in June 2012. Consequently, as records dated since June 2012 might contain information relevant to the Veteran's claims on appeal, on remand, they must be secured and associated with the record. 38 C.F.R. § 3.159(c)(2), (c)(3) (2013); Bell v. Derwinski, 2 Vet. App. 611 (1992) (because VA is deemed to have constructive knowledge of all VA records and such records are considered evidence of record at the time a decision is made). Finally, as resolution of the Veteran's increased rating claims may have an impact on his earlier effective date claims, the issues are inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, the effective date issues should be held in abeyance, pending resolution of the increased rating claims. Accordingly, the case is REMANDED for the following actions: 1. Obtain the Veteran's VA outpatient treatment records for the period since June 2012, to specifically include a copy of any outstanding March 2012 DBQ VA (fibromyalgia) examination report. Any outstanding treatment records obtained must be physically associated with the paper claims file or with the electronic file. If any requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the claims files, and the Veteran should be informed in writing. 2. If there is no record of a March 2012 DBQ VA examination relating to his claim for an increased initial rating for fibromyalgia, schedule the Veteran for a VA examination to assess the current severity of his service-connected fibromyalgia. All testing deemed necessary must be conducted and the results reported in detail. The examiner should also provide an opinion concerning the impact of the Veteran's service-connected fibromyalgia on his ability to work. The supporting rationale for all opinions expressed must be provided. 3. Thereafter, readjudicate the Veteran's claims. If any benefits sought on appeal remains denied, the Veteran and his representative should be provided a supplemental statement of the case, and an appropriate period of time should be allowed for response before the case is returned to the Board. 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). [CONTINUED ON NEXT PAGE] These claims 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). _________________________________________________ F. JUDGE FLOWERS 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) (2013).