Citation Nr: 1602085 Decision Date: 01/19/16 Archive Date: 01/27/16 DOCKET NO. 12-27 252 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for chronic fatigue syndrome (CFS) secondary to an acquired psychiatric disability, PCB exposure, asbestos exposure, and/or herbicide exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant and her spouse ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from June 1973 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran and her spouse testified at a hearing before a Decision Review Officer (DRO) in June 2013, and before a Veterans Law Judge in August 2014. A transcript is of record. The law requires that the Veterans Law Judge who conducts a hearing on an appeal must participate in any decision made on that appeal. 38 U.S.C.A. § 7107(c) (West 2014); 38 C.F.R. § 20.707 (2015). In November 2015 the Board sent a letter to the Veteran which explained that the Veterans Law Judge who presided over her hearing was no longer available to participate in the appeal and offered the Veteran a hearing before a different Veterans Law Judge; otherwise the case would be reassigned. In December 2015 the Veteran responded that she did not want another hearing. Thus, the Board will proceed with the matter on appeal. In December 2014, the Board denied service connection for CFS and remanded issues of service connection for loss of left ovary, eye disorder, hair loss, sleep disorder, bilateral breast biopsies with scars, diabetes mellitus, thyroid disorder/Graves' disease, an acquired psychiatric disability, and irregular menopause. The Board also remanded an issue of special monthly compensation. The Board also noted that the Veteran had withdrawn the issue of service connection for chronic obstructive pulmonary disorder and dismissed that issue. The Veteran subsequently appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In a January 2015 Order, the Court granted Joint Motion for Partial Remand (JMR), vacating the Board's denial of service connection for CFS, and remanding for additional proceedings. As noted in the prior remand the record raises an informal claim of entitlement to service connection for premature/stillborn births secondary to PCB exposure, asbestos exposure, and/or herbicide exposure. See, e.g., August 2014 Hearing Transcript at 6. This issue has not been adjudicated by the agency of original jurisdiction (AOJ), and the Veteran has pointed to this fact in written correspondence received in December 2015. Therefore, the Board does not have jurisdiction over this issue, and it is referred to the RO for appropriate development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The case was remanded by the Court due to the Board's failure to provide an adequate statement of reasons or bases of its conclusion that an examination and opinion were not necessary to decide the claim-in light of the Veteran's competent lay statements regarding her symptoms of fatigue. At the time of the Board's December 2014 denial, it was determined that an examination was not necessary because there was no competent medical evidence of a CFS diagnosis. Since the JMR was issued, a January 2015 statement has been issued by the Veteran's private physician who clarified his belief that the Veteran's multiple medical conditions including a diagnosed CFS and hyperthyroid condition were connected to her service at McClellan Air Base and other military facilities. The Board notes that the VA has conceded exposure to PCB chemicals while the Veteran was stationed at McClellan Air Base. VA must provide an examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006). See McClendon v. Nicholson, 20 Vet. App. 79, 86 (2006). Thus in light of the evidence (now including medical as well as lay evidence) of a current CFS disability, and to ensure compliance with the JMR, the Veteran should be afforded a VA examination to address whether she has a CFS disability that is related to service including her PCB exposure. In addition, the JMR determined that the issue of entitlement to service connection for CFS to be inextricably intertwined with the remanded issues of entitlement to service connection for a thyroid condition/Grave's disease secondary to PCB exposure, asbestos exposure and/or herbicide exposure and service connection for an acquired psychiatric disability including as secondary to thyroid condition/Grave's disease, PCB exposure, asbestos exposure and/or herbicide exposure. It was pointed out in the JMR that the Veteran had expressed a belief that her CFS may be secondary to her psychiatric disorder with episodes of anxiety and panic attacks, which she in turn attributed to her thyroid condition alleged to have been caused by her in-service PCB exposure. Issues are "inextricably intertwined" when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue(s) have been considered. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Following completion of any additional development pertinent to this claim including any development pertaining to the intertwined issues of entitlement to service connection for a thyroid condition/Grave's disease secondary to PCB exposure, asbestos exposure and/or herbicide exposure and entitlement to service connection for an acquired psychiatric disability including as secondary to thyroid condition/Grave's disease, PCB exposure, asbestos exposure and/or herbicide exposure undertaken pursuant to the Board's December 2014 remand of these issues, arrange for VA examination by a physician to determine whether the Veteran has a disability that is related to the Veteran's military service, in particular the confirmed PCB exposure in service and the other claimed disorders of a psychiatric disorder and a thyroid disorder, which are alleged to be related to service including by PCB exposure. The claims file (which is in an electronic format) must be made available to and reviewed by the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. Any diagnostic tests and studies deemed necessary must be accomplished. Following review of the evidence and examination the examiner is specifically requested to offer an opinion as to the following: (a) Does the Veteran have a current disability manifested as CFS? In answering this question, the examiner should address the correspondences from the Veteran's private physician including the most recent one dated in January 2015, describing CFS as a current disability and linking it to service. If a current CFS disability is confirmed to exist, please answer the following: (b) Is it at least as likely as not, i.e., 50 percent or greater probability, that a currently diagnosed CFS had its onset during service or is otherwise related to service, to include as the result of PCB, herbicide, and/or asbestos exposure? In answering this question, the examiner should address the correspondences from the Veteran's private physician including the most recent one dated in January 2015. (c) If not related to service, the examiner should then provide an opinion as to whether it is at least as likely as not, i.e., a 50 percent or greater probability, that any currently diagnosed CFS was caused or aggravated (permanently worsened beyond normal progression) by a thyroid condition/Graves' disease or psychiatric disability (if service-connected). A full and complete rationale for all opinions expressed must be provided. If the examiner determines that he cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 2. After the above has been completed, and following completion of any additional evidentiary development deemed appropriate, and resolution of the intertwined issues cited above in paragraph 1, as well as the previously remanded issues (Board's December 2014 remand) readjudicate the issues on appeal. If any of the benefits sought remain denied, issue a supplemental statement of the case and provide the Veteran and her representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless she is 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). This claim must be afforded expeditious treatment. The law requires that 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 2014). _________________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).