Citation Nr: 1753727 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 04-43 779 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU) on an extraschedular basis. 2. Entitlement to service connection for chronic fatigue syndrome (CFS). REPRESENTATION Veteran represented by: Robert V. Chisholm, Attorney ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1990 to October 1991, to include service in the Southwest Asia theater of operations during the Persian Gulf War. The issue of entitlement to TDIU comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board denied claims for initial evaluations in excess of 10 percent for bilateral knee disabilities in a February 2013 decision. Thereafter, the Court of Appeals for Veterans Claims (Court), pursuant to a Joint Motion for Remand dated August 2013 remanded the issue of entitlement to TDIU. The Court found the Board's February 2013 decision failed to address this issue and ordered consideration of the claim on an extraschedular basis. The issue of entitlement to service connection for CFS arises from an August 2009 rating decision. The Veteran filed a Notice of Disagreement in October 2009 and perfected an appeal with an April 2014 Substantive Appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. TDIU The August 2013 Joint Motion for Remand noted the February 2013 Board decision considered extraschedular ratings for his bilateral knee disabilities but did not consider entitlement to TDIU on an extraschedular basis or whether a May 2012 memorandum from Compensation Service addressed the issue of TDIU. Here, the Board finds the May 2012 memorandum does not adequately address whether the Veteran is unemployable solely due to his bilateral knee disabilities. Under 38 C.F.R. § 4.16(b) all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability should be referred to the Director of the Compensation Service. While the May 2012 memorandum addresses effects on the Veteran's employment due to his bilateral knee disabilities, the ultimate opinion is in relation to an increased evaluation under 38 C.F.R. § 3.321(b)(1). Further, the Board notes the issue of TDIU is inextricably intertwined with the claim for service connection for chronic fatigue syndrome and a final decision on the issue of entitlement to TDIU cannot be rendered at this time. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Service Connection for Chronic Fatigue Syndrome The Board notes that during the pendency of the appeal for a TDIU, the Veteran perfected an appeal for service connection for chronic fatigue syndrome. In September 2015, the Board remanded the claim for a VA examination and opinion. A May 2017 VA examination and opinion were obtained. Thereafter, the Veteran, through his representative, asserted that the May 2017 VA opinion is inadequate for adjudication purposes. The May 2017 VA examiner opined that the Veteran had manifested symptoms of fatigue since a motor vehicle accident in May 2000; however, the Veteran argues that chronic fatigue existed since approximately 1995, and the Veteran filed a claim for service connection for chronic fatigue in November 1995. See Correspondence dated June 2017; VA 21-526 dated November 1995. Thus, the predicate of the examiner's conclusion is called into question. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In addition, although the May 2017 VA examiner found that the Veteran did not manifest chronic fatigue syndrome, the examiner did not provide a conclusion stating whether the Veteran's complaints of pain and fatigue was an undiagnosed illness or medically unexplained chronic multi-symptom illness. Accordingly, the Board finds that an additional examination and opinion are warranted to address whether the Veteran manifests chronic fatigue syndrome, an undiagnosed illness, or medically unexplained chronic multi-symptom illness. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the case is REMANDED for the following action: 1. The AOJ should also secure any outstanding, relevant VA medical records 2. Schedule the Veteran for a VA examination pursuant to his service connection claim for chronic fatigue syndrome. The electronic claims file must be reviewed by the examiner in conjunction with the examination. Based on the clinical examination and a review of the evidence of record, the examiner should answer the following: a) Is it at least as likely as not (50 percent or higher probability) that the Veteran has a diagnosis of chronic fatigue syndrome meeting the criteria set forth in 38 C.F.R. § 4.88a? Please explain why or why not. b) If a diagnosis of chronic fatigue syndrome is not supported, is it at least as likely as not (50 percent or higher probability) that the Veteran's claimed fatigue represents an undiagnosed illness related to his Persian Gulf War service? Please explain why or why not. 3. Conduct appropriate development, to include referral of the claim to VA's Director of Compensation Service for consideration of a TDIU on an extraschedular basis. 4. When the development requested has been completed, the case should be reviewed by the AOJ on the basis of additional evidence, to include the issue of entitlement to TDIU. If the benefits sought are not granted, the Veteran and his representative should be furnished a supplemental statement of the case. The Veteran 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 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 2014). _________________________________________________ A. S. CARACCIOLO 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) (2016).