Citation Nr: 20006136 Decision Date: 01/28/20 Archive Date: 01/24/20 DOCKET NO. 12-33 604A DATE: January 28, 2020 ORDER The appeal for entitlement to service connection for a skin disorder, to include as due to an undiagnosed illness, is dismissed. The appeal for entitlement to service connection for irritable bowel syndrome (IBS) and/or gastrointestinal problems, to include as due to an undiagnosed illness, is dismissed. REMANDED Entitlement to an initial disability rating in excess of 40 percent for fibromyalgia is remanded. Entitlement to service connection for chronic fatigue syndrome and/or fatigue, to include as due to an undiagnosed illness, is remanded. Entitlement to service connection for muscle joint stiffness and pain, to include as due to an undiagnosed illness, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT While in remand status, an August 2015 rating decision granted the Veteran’s claims of entitlement to service connection for a skin disorder and IBS. CONCLUSIONS OF LAW 1. As the benefit sought on appeal with respect to the matter of service connection for a skin disorder has been granted, there remains no case or controversy as to the issue of entitlement to service connection for a skin disorder. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. 2. As the benefit sought on appeal with respect to the matter of service connection for IBS has been granted, there remains no case or controversy as to the issue of entitlement to service connection for IBS. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDING AND CONCLUSIONS Preliminary Matters The Veteran had honorable active duty service with the United States Navy from June 1990 to June 1994, to include service in the Southwest Asia (SWA) Theater of operations during the Persian Gulf War. This matter is before the Board of Veterans’ Appeals (Board) on appeal from June 2009 and January 2010 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2015, the Board remanded the issues on appeal for further development. While the matter was in remand status, the RO granted the claims of service connection for a skin disorder and IBS in an August 2015 rating decision. Furthermore, as regards to the increased rating claim for service-connected fibromyalgia, while in remand status, by way of the August 2015 rating decision, the RO also increased the disability rating to 40 percent, effective March 21, 2008, the date of the claim of entitlement to service connection. As that award did not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue has been restated accordingly on the title page. The Board notes that in his substantive appeal, the Veteran requested a hearing. In February 2014, the Veteran withdrew his request for a hearing. Therefore, a hearing has not been conducted and the Board will proceed to adjudicate the claims currently on appeal. The Board further notes that the Veteran was previously represented by the Veterans of Foreign Wars of the United States (VFW). In December 2017, the Veteran revoked such representation. He has not obtained another representative and is proceeding pro se; however, VFW submitted an informal hearing presentation (IHP) on his behalf in January 2020. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In this case, the evidence of record shows that the Veteran’s service-connected fibromyalgia impacted his ability to work. In August 2009, the Veteran submitted a letter from the Nassau County Civil Service Commission indicating that he was disqualified from serving as a police officer, as his orthopedic (rheumatological) condition precluded his ability to fulfill the physical requirements of such position. Thus, the Veteran indicates that his service-connected fibromyalgia has significantly limited his occupational activities. As such, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claim. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. Entitlement to service connection for a skin disorder, to include as due to an undiagnosed illness, is dismissed. See Argument Below Entitlement to service connection for IBS and/or gastrointestinal problems, to include as due to an undiagnosed illness, is dismissed. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. In this case, an August 2015 rating decision granted the Veteran’s claims of entitlement to service connection for a skin disorder and IBS. This action resolved the claims for service connection. As a result, no case or controversy regarding the matters of service connection for a skin disorder and IBS remain, and there is no remaining allegation of error of fact or law for appellate consideration. 38 U.S.C. § 7105(d)(5). Accordingly, the Board is without jurisdiction to review the appeal with respect to these matters, and the matters are dismissed. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. Entitlement to an initial disability rating in excess of 40 percent for fibromyalgia is remanded. The Veteran seeks entitlement to an increased rating for his service-connected fibromyalgia. By way of history, a statement of the case (SOC) regarding the Veteran’s increased rating claim on appeal was issued in October 2012. Pursuant to the February 2015 Board remand directives, the Veteran was afforded a new VA examination to determine the severity of his service-connected fibromyalgia in May 2015. As previously noted, in an August 2015 rating decision, the RO increased the Veteran’s service-connected fibromyalgia to a disability rating of 40 percent, effective March 21, 2008. Following the August 2015 rating decision, the Veteran was afforded a VA examination to evaluate the severity of the condition in July 2019 and October 2019. Furthermore, additional VA treatment records were added to the claims file. There is no supplemental statement of the case (SSOC) addressing this evidence. A rating decision dated November 2019 was issued instead of a SSOC, as the RO mistakenly treated the Veteran’s claim as a new claim for an increased rating even though his appeal of the June 2009 rating decision was still pending. However, a SSOC must be furnished to the claimant when additional pertinent evidence is received after a SOC or the most recent SSOC has been issued. 38 U.S.C. § 7105; 38 C.F.R. § 19.31. Thus, the Board concludes that a remand is necessary for the issuance of a SSOC addressing the Veteran’s claim. Entitlement to service connection for chronic fatigue syndrome and/or fatigue, to include as due to an undiagnosed illness, is remanded. See Argument Below Entitlement to service connection for muscle joint stiffness and pain, to include as due to an undiagnosed illness, is remanded. The Veteran also contends entitlement to service connection for chronic fatigue syndrome and/or fatigue and muscle joint stiffness and pain, to include as due to an undiagnosed illness related to his confirmed service in SWA. Initially, a review of the claims file reveals that, following the issuance of the SSOC in August 2015, additional medical evidence has been associated with the Veteran’s claims file, to include voluminous VA treatment records. As the additional VA treatment records contain information pertinent to the claims on appeal, the Agency of Original Jurisdiction (AOJ) must readjudicate the claims with consideration of this additional evidence. 38 C.F.R. § § 19.31, 20.1304(c). In addition, the record reflects that the Veteran was most recently afforded separate VA examinations for his claimed chronic fatigue syndrome and/or fatigue and muscle joint stiffness and pain in May 2015. The Board finds that a new VA examination for each claimed disability on appeal is warranted, as the medical opinions associated with the May 2015 examinations did not consider the new pertinent medical evidence associated with the claims file. Additionally, the Board notes that the record includes various lay statements regarding the Veteran’s symptoms related to fatigue and muscle pain. Thus, the opinions were based on incomplete medical records and are of limited probative value. See Shipwash v. Brown, 8 Vet. App. 218, 222 (1995); Flash v. Brown, 8 Vet. App. 332, 339-340 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of a veteran’s claims folder). Therefore, the Board finds that the Veteran should be afforded new VA examinations that consider all pertinent medical evidence, including the above-stated treatment records associated with the claims file following the May 2015 examinations, as well all lay statements regarding the Veteran’s symptoms related to fatigue and muscle pain. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran’s entitlement to a TDIU is inextricably intertwined with the claims remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned claims. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are “inextricably intertwined” where action on one matter could have a “significant impact” on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran’s employment status throughout the relevant period, education, and service-connected limitations. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Provide the Veteran with a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 3. After completing the above development, schedule the Veteran for examinations by appropriate clinicians to determine the nature and etiology of his claimed chronic fatigue syndrome and/or fatigue and muscle joint stiffness and pain. The Veteran’s claim file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. Following a review of the relevant records and lay statements, the examiner should state an opinion as to whether it is at least as likely as not that the Veteran has a current disability related to fatigue and/or a muscle condition. If a diagnosis is made, then the examiner shall provide an opinion as to whether it is at least as likely as not that the diagnosed disorder(s) was/were incurred during or aggravated by the Veteran’s active military duty, to include as due to in-service environmental hazards from his service in Southwest Asia (to include exposure to unknown chemicals, gases, oil fires, and bombs). If no diagnosis can be made, then the examiner shall provide an opinion regarding whether it is at least as likely as not that the Veteran manifests signs and symptoms of any undiagnosed illness. The examiner must provide a complete rationale for all proffered opinions. In this regard, the examiner must discuss and consider the Veteran’s statements indicating his exposure to unknown chemicals, gases, oil fires, and bombs, and that he experienced symptoms related to the claimed disabilities during service. If an opinion cannot be offered without resort to mere speculation, the examiner must indicate why this is the case and indicate what additional evidence, if any, would allow for a more definitive opinion. The examining physician/specialist is to be asked to provide information to demonstrate that they are qualified to offer the above requested opinion (such as a curriculum vitae or similar demonstrable documentation (which may be redacted as deemed warranted)). This information is to be associated with the Veteran’s claims file. See Francway v. Wilkie, No. 2018-2136, 2019 U.S. App. LEXIS 30633 (Fed. Cir. Oct. 15, 2019). Without the requested information, the Board may have to again remand this case for this evidence. 4. After completing all indicated development, the Veteran’s claims, to include the issue of entitlement to a TDIU, should be readjudicated based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is remanded to the Board. For the issues on appeal, the SSOC should consider any new evidence received since the SOC and SSOC issued in October 2012 and August 2015, respectively. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.