Citation Nr: 1638824 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 11-12 616 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for fibromyalgia, to include as due to an undiagnosed illness. 2. Entitlement to service connection for chronic fatigue syndrome, to include as due to an undiagnosed illness. 3. Entitlement to service connection for joint pain, to include as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Hawaii Office of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from October 1988 to February 1995 in the United States Army. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran testified before the undersigned Veterans Law Judge in March 2012. A transcript of the hearing is of record. In March 2014 and July 2015, the Board remanded the claims to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since been returned to the Board for further review. The Veteran also perfected an appeal regarding the issue of entitlement to service connection for irritable bowel syndrome; however, in a November 2014 rating decision, the AOJ granted service connection for that disability. The AOJ's grant of service connection for this issue constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, this matter is no longer in appellate status. See Grantham, 114 F.3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Virtual VA paperless claims processing system. Any future consideration of this Veteran's case should take into account the existence of these electronic records. The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action on his part is required. REMAND In July 2015, the Board remanded the claims to obtain records from Kapiolani Medical Center that were scanned into VistA Imaging and referenced in July 2007 VA treatment records. A review of the claims file indicates that the AOJ obtained VA treatment records dated in 2007, but it does not appear that the records from Kapiolani Medical Center were included. Therefore, a remand is required to ensure compliance with the directives of the prior remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order). The Board also remanded the case to afford the Veteran with VA examinations. Thereafter, VA examinations were conducted in September 2015. The examiner stated that the Veteran did not meet the criteria for chronic fatigue syndrome and fibromyalgia. She further opined that the Veteran had multiple other conditions that explained his complaints of chronic fatigue and pain. However, the examiner did not identify what those other medical conditions were or provide an opinion as to whether they were incurred in or otherwise related to the Veteran's military service, pursuant to the Board's July 2015 remand instructions. Therefore, a remand is required to ensure compliance with terms of the prior remand. Accordingly, the case is REMANDED for the following actions: 1. The AOJ should ensure that the outside medical records from Kapiolani Medical Center that were scanned into VistA imaging dated in July 2007 are associated with the claims file. If all available records from VistA have already been associated with the claims file, the AOJ should note this in the claims file. The AOJ should also obtain any outstanding and relevant VA treatment records, including from the VA Pacific Islands Health Care System dated from September 2015 to the present. 2. After completing the foregoing development, the AOJ should refer the Veteran's claims file to the September 2015 VA examiner or, if she is unavailable, to another suitably qualified VA examiner for a medical opinion to determine the nature and etiology of his claimed chronic fatigue, fibromyalgia, and joint pain. If a VA examination is required, one should be provided. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's post-service medical records and his statements. The Veteran has contended that he began feeling tired towards the end of his deployment to the Persian Gulf and that he had pain in his elbows and knees during service. He has also contended that he has had these symptoms since service. In addition, the Veteran has claimed that he began having pain in his wrists and ankles after service and has attributed this pain to an undiagnosed illness. See Board Hearing Tr. at 14, 17. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should identify all current disorders related to the Veteran's reported symptoms. For each diagnosis identified, the examiner should opine as to the likelihood (likely, unlikely, at least as likely as not) that the disorder manifested during active service or is otherwise causally or etiologically related to his active service. In rendering this opinion, it should be noted that the September 2015 VA examiner had stated that the Veteran did not meet the criteria for chronic fatigue syndrome and fibromyalgia. She opined that the Veteran had multiple other conditions that explained his complaints of chronic fatigue and pain. However, the examiner did not identify what those other medical conditions were or provide an opinion as to whether they were incurred in or otherwise related to the Veteran's military service. If any symptomatology cannot be attributed to a known clinical diagnosis, the examiner should describe the pertinent objective findings related to such symptomatology. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. After completing the above actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence. If any benefit sought is not granted, the Veteran should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 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). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ J.W. ZISSIMOS 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).