Citation Nr: 1335640 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-26 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an increased disability rating in excess of 20 percent for service-connected fibromyalgia prior to May 28, 2013, and 40 percent, effective May 28, 2013. REPRESENTATION Appellant represented by: Stephen Vaughn, Agent ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active service from September 1989 to August 1992. By way of history, as discussed previously in the December 2011 remand, the Board of Veterans' Appeals (Board) noted that by a May 2003 decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA), service connection was granted for chronic fatigue syndrome, and a 40 percent disability rating was assigned, effective March 1, 2002. By a June 2006 rating decision, the RO reduced the disability rating assigned for chronic fatigue syndrome from 40 percent to 0 percent, effective September 1, 2006. Received from the Veteran in April 2007, was a claim for an increased rating for his service-connected chronic fatigue syndrome. In a statement submitted in August 2008, the Veteran requested that his compensation examination for "fibromyalgia" be rescheduled. Thereafter, by a February 2009 rating decision, the RO granted a 20 percent disability rating for fibromyalgia (previously diagnosed and evaluated as chronic fatigue syndrome with depression), effective April 27, 2007. Received from the Veteran in April 2009 was a statement in which he requested "reconsideration" of the 20 percent disability rating for fibromyalgia "due to worsening conditions." This statement, although characterized as a request for reconsideration, appeared to contain all the elements required of a Notice of Disagreement, and the matter came before the Board from the February 2009 rating decision of which, as noted above, granted an increased, 20 percent, disability rating for service-connected fibromyalgia. In December 2011, the Board remanded this case for additional development, specifically, a Board hearing. At that time, the Veteran was represented by the Veterans of Foreign Wars of the United States. However, of record is a May 2012 VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of the agent specified on the title page herein. The Veteran was scheduled to appear before the Board at the RO on June 11, 2012. However, in a June 7, 2012, letter, the Veteran's agent withdrew his request for a Board hearing. See 38 C.F.R. § 20.703 (2013). In April 2013 the Board remanded the case again so that the RO could associate with the claims file additional VA treatment records and so that another VA examination could be provided to determine the present severity of the Veteran's fibromyalgia. Additional VA treatment records were added to the Veteran's VBMS paperless file and a more recent examination was provided in May 2013. In a July 2013 rating decision, the RO granted an increased rating of 40 percent for the Veteran's fibromyalgia, effective May 28, 2013. The Veteran has not indicated that he is satisfied with this rating. Thus, this claim is still before the Board. AB v. Brown, 6 Vet. App. 35 (1993). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. This appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND As noted above, in May 2012, the Veteran appointed Agent Stephen Vaughn as his representative. See May 2012 VA Form 21-22a, Appointment of Individual as Claimant's Representative. Upon review of the record, it does not appear that the representative was given an opportunity to submit argument or procedural documents in support of the Veteran's claim prior to the RO returning the case to the Board. In fact, the July 2013 rating decision and supplemental statement of the case were sent to a Veterans Service Organization in error. When an appellant appeals to the Board, he or she "will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person." 38 C.F.R. § 20.600 (2013). When an appellant has appointed a representative, the RO must afford that representative the opportunity to execute a VA Form 646, prior to certification of the appeal to the Board "in all instances." VA Adjudication Procedure Manual, M21-1, Part IV, para. 8.29 (Mar. 24, 2000); 38 C.F.R. § 20.600 (2013). In order to comply with due process of law, the Veteran's representative must be provided the opportunity to review the record and offer written argument on the Veteran's behalf. Accordingly, the case is REMANDED for the following action: 1. Forward the relevant evidence that has not already been provided to the Veteran's Agent (address of record) in this case to include the July 2013 rating decision and supplemental statement of the case, and afford the Agent an opportunity to review the relevant documents and submit additional argument and/or evidence on behalf of the Veteran. All efforts made should be documented and incorporated into the claims file. Notification of this action should be sent to the Veteran and documented in the claims file. 2. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. 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 the next page) 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. 2013). _________________________________________________ S. L. Kennedy 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).