Citation Nr: 18157038 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 17-26 631 DATE: December 11, 2018 REMANDED Entitlement to an effective date prior to April 26, 2012 for the grant of service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to an effective date prior to April 26, 2012 for the grant of service connection for chronic fatigue syndrome is remanded. Entitlement to an initial rating greater than 60 percent for service-connected chronic fatigue syndrome is remanded. Entitlement to an initial compensable rating for service-connected unexplained rashes is remanded. Entitlement to an effective date prior to April 24, 2012 for the grant of service connection for unexplained rashes is remanded. Entitlement to an effective date prior to January 21, 2014 for the grant of service connection for dysgeusia is remanded. Entitlement to an initial compensable rating for service-connected dysgeusia is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1989 through September 1993 with additional Reserves service. Entitlement to service connection for “Gulf War syndrome” was denied in a November 2004 rating decision. However, in December 2004, the rating decision and notification letter were returned as undeliverable. In Woods v. Gober, 14 Vet. App. 214, 220-21 (2000), the Court held that where the RO sends a Veteran notice of a decision, and such notice is returned as undeliverable, the presumption of regularity is rebutted, and the burden is shifted to the RO to establish that it reviewed the claims file to ascertain whether there are other possible and plausible addresses for the Veteran. The Court has also found that “the returned notice should have triggered reexamination of the file to determine whether another address was available.” Hyson v. Brown, 5 Vet. App. 262, 264 (1993). In December 2004, the Veteran submitted a Power of Attorney (POA) agreement form that listed an updated mailing address. Accordingly, there is clear evidence the Veteran did not receive the November 2004 rating decision, as the rating decision was returned to VA. There is no evidence in the claims file that the rating decision was re-mailed to the then-current address listed on his December 2004 POA agreement. As such, the finality of the November 2004 rating decision denying the Veteran service connection for “Gulf War syndrome” is questionable. The Veteran filed a claim for entitlement to service connection for “Gulf War syndrome” in April 2012 and again in January 2014. In a January 2015 rating decision, the Regional Office (RO) granted entitlement to service connection for chronic fatigue syndrome, unexplained rashes, and dysgeusia, and explained that the three disabilities were related to his service in Southwest Asia. The Veteran submitted a timely notice of disagreement disputing the evaluation and effective date of his “Gulf War syndrome.” However, the RO only addressed the issues of entitlement to an earlier effective date for chronic fatigue syndrome and the issues of entitlement to an initial compensable rating for dysgeusia and entitlement to a higher rating for chronic fatigue in the August 2016 Statement of the Case. As the Veteran’s unexplained rashes, chronic fatigue syndrome, and dysgeusia were all granted service connection based on the Veteran’s service in Southwest Asia, the Board finds that the issues of entitlement to earlier effective dates for unexplained rashes and dysgeusia and entitlement to an initial compensable rating for dysgeusia have been reasonably raised by the record and timely appealed. The Board notes that the RO attempted to clarify which issues the Veteran wanted to appeal to the Board in a June 2017 letter. The RO listed the issues on appeal. The Veteran responded in July 2017 stating that his claims for “GWS, anxiety, stress PTSD” date back to 1996 or 1997. Accordingly, the RO erred in limiting the Veteran’s claims to only those listed in the August 2016 Statement of the Case. Additionally, in a March 2018 rating decision, the Regional Office granted entitlement to earlier effective dates of April 26, 2012 for the issues of chronic fatigue syndrome and unexplained rashes, and closed out the Veteran’s appeal for entitlement to an earlier effective date for Gulf War syndrome. However, this was incorrect. The Veteran has consistently claimed that his disability ratings should date back to 2002 or 2004. Since the March 2018 rating decision did not grant the maximum benefit sought by the claimant, the RO incorrectly limited the Veteran’s claims, and the issues of entitlement to earlier effective dates for chronic fatigue syndrome and unexplained rashes remain on appeal. The March 2018 rating decision granted a 100 percent disability rating effective April 26, 2012 for service-connected PTSD. This constituted a complete grant of the issue on appeal, as it granted the Veteran the highest disability rating possible for his PTSD back to the date of his 2012 claim for entitlement to service connection and the RO closed out the appeal. Accordingly, the issue of entitlement to a greater initial rating for service-connected PTSD is not before the Board.   1. Entitlement to an effective date prior to April 26, 2012 for the grant of service connection for PTSD 2. Entitlement to an effective date prior to April 26, 2012 for the grant of service connection for chronic fatigue syndrome is remanded. The Veteran seeks entitlement to an earlier effective date for the grant of service connection for PTSD and chronic fatigue syndrome. The Veteran submitted an informal claim for anxiety related to Gulf War syndrome in March 2004. He was scheduled for a VA examination to evaluate his claim in October 2004; however, the November 2004 rating decision noted that the Veteran failed to attend his scheduled examination. The Veteran’s VA treatment records contain an October 2004 examination labeled “Compensation and Pension Initial Evaluation: General Mental Health.” The examination report noted that the examination was conducted at the Worcester Outpatient Clinic, but the Veteran’s examination notice letter instructed him to report to Causeway, indicating that he reported to the incorrect facility for his examination. The examiner afforded the Veteran a general mental health evaluation despite the mix-up. During that examination, the Veteran reported being involved in several drive-by shootings while in Saudi Arabia. He was diagnosed with anxiety; however, no nexus opinion was provided. The RO had constructive possession of the October 2004 VA examination addressing his claim for anxiety related to Gulf War syndrome, but failed to consider that examination in the November 2004 rating decision denying entitlement to service connection for Gulf War syndrome. During his October 2004 examination, the Veteran reported that his energy levels were good, but then he would just crash and not want to do anything or be bothered, suggesting symptoms of fatigue at the time of his 2004 claim for Gulf War syndrome. As the October 2004 VA examination was not considered in the November 2004 rating decision, there is no way to determine whether entitlement to service connection for chronic fatigue syndrome or anxiety that could have developed into his currently service-connected PTSD would have been granted. Accordingly, remand is required. Furthermore, the RO is directed to the discussion above concerning finality of the 2004 rating decision. 3. Entitlement to an initial rating greater than 60 percent for service-connected chronic fatigue syndrome is remanded. 4. Entitlement to an initial compensable rating for service-connected unexplained rashes is remanded. As the issues for entitlement to an initial rating greater than 60 percent for chronic fatigue syndrome and entitlement to an initial compensable rating for service connected unexplained rashes may be impacted by the determination of the earlier effective date claims, the issues are inextricably intertwined and remanded. 5. Entitlement to an effective date prior to April 26, 2012 for the grant of service connection for unexplained rashes is remanded. 6. Entitlement to an effective date prior to January 21, 2014 for the grant of service connection for dysgeusia is remanded. 7. Entitlement to an initial compensable rating for service-connected dysgeusia is remanded. A January 2015 rating decision granted entitlement to service connection for unexplained rashes and dysgeusia and assigned noncompensable ratings effective January 21, 2014. The Veteran filed a timely June 2015 notice of disagreement disagreeing with the evaluation and effective date of his “Gulf War syndrome.” As is discussed above, service connection for unexplained rashes and dysgeusia was granted as undiagnosed illnesses due to service in Southwest Asia. As such, the Board finds the Veteran submitted a timely notice of disagreement disagreeing with the effective date of his service-connected unexplained rashes, and the effective date and evaluation of his service-connected dysgeusia. The submission of an NOD confers the Board jurisdiction over these matters. When a veteran files a timely NOD as to a particular issue and no statement of the case (SOC) is furnished, the Board should remand, rather than refer, the claim for issuance of an SOC. See 38 C.F.R. § 19.9(c); Manlincon v. West, 12 Vet. App. 238 (1999). The RO has not provided a SOC on these claims, so a remand is required. The Veteran should understand that, after the RO issues an SOC, he must timely file a substantive appeal (e.g. VA Form 9) in order to perfect his appeal and permit a decision on the merits by the Board. See 38 C.F.R. §§ 20.200, 20.202, 20.302(b). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from February 2018 to the present. 2. Request an addendum VA medical opinion to answer the following questions: (a.) Whether it is at least as likely as not that the Veteran’s anxiety diagnosed during the October 2004 VA examination was etiologically related to his active duty service. The examiner must discuss the Veteran’s report of experiencing drive-by shootings while stationed in Saudi Arabia. (b.) Whether it is at least as likely as not that the Veteran had symptoms of chronic fatigue syndrome at the time of the October 2004 VA examination that had persisted for a period of six months. The examiner must discuss the October 2004 VA examination noting the Veteran experienced sudden losses of energy, and the May 2016 VA examination noting that the Veteran was diagnosed with chronic fatigue syndrome in 2000. 3. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an effective date prior to April 26, 2012 for the grant of service connection for unexplained rashes; entitlement to an effective date prior to January 21, 2014 for the grant of service connection for dysgeusia; and entitlement to an initial compensable rating for service-connected dysgeusia. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 4. Readjudicate the issues on appeal, and send the Veteran and his representative a Supplemental Statement of the Case if appropriate. The RO is referred to the Board’s discussion above concerning the finality of the 2004 rating decision in light of (a) an October 2004 VA examination report the RO did not consider; and (b) return of the notification letter, with information as to a new address the following month. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Parsons, Associate Counsel