Citation Nr: 1817253 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 13-16 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an initial disability rating in excess of 20 percent from June 29, 2010, and in excess of 40 percent from September 12, 2017, for service-connected chronic fatigue syndrome. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his caretaker ATTORNEY FOR THE BOARD N. Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1976 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2011 and December 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In January 2014, the Veteran and his caretaker testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the Board hearing is included in the electronic claims file. During the pendency of the appeal, the RO issued a December 2017 rating decision increasing the Veteran's chronic fatigue syndrome evaluation to 40 percent effective September 12, 2017. The RO also issued a Supplemental Statement of the Case (SSOC) in December 2017 denying an initial rating in excess of 20 percent, as well as an increased rating in excess of 40 percent from September 12, 2017. For the reasons discussed below, further development is necessary to properly adjudicate the Veteran's claim and a remand is required. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND Remand is required to ensure compliance with the Board's prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In an April 2015 decision, the Board denied the Veteran's claim of an initial disability rating in excess of 20 percent for service-connected chronic fatigue syndrome. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (CAVC), and in an October 2016 decision, CAVC vacated the Board's decision and remanded the case for further development. In a May 2017 decision, the Board remanded the case to obtain an adequate medical opinion regarding the severity of the Veteran's chronic fatigue syndrome. The Board specifically requested the examiner to provide an opinion regarding the percentage the Veteran's routine daily activities have been diminished due to chronic fatigue syndrome and identify periods of incapacitation in the course of a year due to the illness. The Veteran was afforded a VA examination in September 2017. However, the examiner was asked to provide an opinion based on the incorrect standards and did not fully comply with the request from the Board. An addendum medical opinion is required. The case is REMANDED for the following action: 1. Request that the Veteran identify and secure any relevant private medical records that are not in the claims file. Attempt to obtain any records identified by the Veteran and associate these records with the claims file. 2. Obtain any outstanding VA medical records and associate them with the claims file. 3. After completing the directives above, return the claims file to the September 2017 VA examiner. If the examiner is unavailable, forward the claims file to a similarly qualified physician. The examiner is specifically requested to opine within established VA examination protocols regarding the percentage the Veteran's routine daily activities have been diminished due to chronic fatigue syndrome, and to identify periods of incapacitation in the course of a year due to this illness. 4. After completion of the above and any other appropriate development deemed necessary, readjudicate the issue on appeal on the basis of the additional evidence. If the determination remains adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ Vito A. Clementi 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) (2017).