Citation Nr: 1802662 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 08-09 198 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for chronic fatigue syndrome (CFS), including consideration as a qualifying chronic disability under 38 C.F.R. § 3.317 (2017). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Brozyna, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1976 to July 1992, to include service in the Southwest Asia Theater of operations during the Persian Gulf War. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran's claim was initially denied in a September 2004 rating decision. His claim was subsequently reconsidered in a June 2006 rating decision under 38 C.F.R. §3.156(b) based on the receipt of an April 2006 VA examination report. Thereafter, the Veteran perfected an appeal as to such decision. In March 2008, the Veteran indicated he did not want a BVA hearing. See Form 9 receipt date March 2008. This case was before the Board in January 2012, December 2013, April 2016, and March 2017 for additional development. It was remanded to the agency of original jurisdiction (AOJ) for additional development. Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal is REMANDED to the AOJ. The Veteran will be advised if he needs to take further action. VA will notify the appellant if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A (West 2014); 38 C.F.R. § 3.159. More recently, a March 2017 remand found the April 2016 VA addendum opinion to be non-compliant with the prior remand. Specifically, the remand directed an opinion based on the record to be given as to whether there are any objective indications (signs) of chronic disability manifested by fatigue, restlessness and/or forgetfulness, which cannot be attributable to any known clinical diagnosis, including by history, physical examination, or laboratory tests? Subsequently in April 2017 a VA addendum opinion was offered by the February 2014/April 2016 VA examiner. The VA examiner determined that the condition claimed was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that his previous opinion indicated that the Veteran did not meet the criteria for CFS and that he did not have cognitive impairment on examination. He also noted that the Veteran scored a 30/30 on the St. Louis University Mental Status Examination and that he had a full time job in 2014. He further noted the Veteran did not have debilitating fatigue or restlessness. The examiner concluded that a new evaluation was needed to assess the current status of the Veteran's disability because 3 years have passed since the prior examination. Subsequent to the April 2017 VA addendum opinion, a deferred rating was issued in August 2017 to obtain an examination report for entitlement to service connection for CFS, including consideration as a qualifying chronic disability under 38 C.F.R. § 3.317. A request for a CFS exam was issued on August 16, 2017. Following this request, a Supplemental Statement of the Case (SSOC) dated October 2017 indicated the Veteran failed to report to his CFS examination citing to the Notification of Failure to Report to VA examination dated September 26, 2017. See VA 21-2507a Request for Physical Examination receipt date August 28, 2017; See SSOC dated October 2017. The Board notes that the record does not contain a CFS exam notification letter or a failure to appear for a CFS examination letter. VA, however, is not ordinarily required to produce evidence to establish that it provided proper notice to a claimant. Instead, VA enjoys a presumption of regularity that supports official acts of public officers and allows courts to presume that what appears regular is regular. Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). The presumption of regularity extends to VA's ministerial acts of mailing decisional and notice documents to claimants. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (applying the presumption of regularity to the RO's mailing of a rating decision). However, the presumption is not absolute, Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992), and may be rebutted by a showing of clear evidence to the contrary, Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). An assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA's mailing process, Jones v. West, 12 Vet. App. 98, 102 (1998); additional evidence to corroborate that assertion is required, Clarke, 21 Vet. App. at 133. Once a claimant has submitted clear evidence of irregularity, the burden shifts to VA to establish that the official duties were properly performed. See Sthele v. Principi, 19 Vet. App. 11, 17 (2004). The Veteran's representative contends that the record failed to substantiate that the Veteran was contacted about an examination for CFS. See Appellate Brief receipt date November 2017 at 3-4. He indicates that there is no evidence that an appointment was made for a CFS examination or that a scheduled appointment for a CFS examination was missed. Id. He concludes that there was no documentary evidence of record indicating a failure to report. Id. at 4. Although an SSOC dated October 2017 indicates the Veteran failed to report to his CFS examination, the record does not contain a notice to the Veteran regarding a CFS examination nor does it contain a clear notice indicating the Veteran failed to attend his CFS examination. See SSOC dated October 2017. Thus, the presumption of regularity has been rebutted. Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran the opportunity to submit, or authorize VA to obtain, any additional medical treatment records either private or VA, relevant to CFS. 2. Arrange to have the Veteran scheduled for an examination for CFS, including consideration as a qualifying chronic disability under 38 C.F.R. § 3.317 and based upon his service in the Southwest Asia Theater of Operations under 38 U.S.C. § 1117. After examining the Veteran, reviewing the claims file, and conducting any studies and/or tests deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that the Veteran meets the diagnostic criteria for CFS. See 38 C.F.R. § 4.88(a). The examiner should also offer an opinion as to whether there are any objective indications (signs) of chronic disability manifested by fatigue, restlessness and/or forgetfulness, which cannot be attributable to any known clinical diagnosis, including by history, physical examination, or laboratory tests? 3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. 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 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. §§ 5109B, 7112. _________________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252, 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).