Citation Nr: 21024427 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 17-04 900 DATE: April 22, 2021 REMANDED Entitlement to service connection for a disability manifested by body aches is remanded. Entitlement to service connection for a disability manifested by fatigue, to include chronic fatigue syndrome, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran had active service from December 1954 to July 1975. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). An informal conference was held before a Decision Review Officer (DRO) of the Agency of Original Jurisdiction (AOJ) in March 2017. A conference report is of record. Additionally, in a January 2017 VA Form 9, Appeal to Board of Veterans’ Appeals, the Veteran requested a Board hearing. However, in June 2017 correspondence, the Veteran requested a hearing before DRO at the AOJ in lieu of a Board hearing. In subsequent June 2017 correspondence, the Veteran withdrew his request for Board hearing and stated he wanted to proceed with the appeal process without any further hearing. 38 C.F.R. § 20.704 (e). Accordingly, the Veteran’s hearing request is withdrawn, and the Board will proceed with appellate review. Additional evidence developed by VA, to include VA treatment records most recently dated in December 2020, was associated with the record subsequent to the most recent, August 2020, supplemental statement of the case (SSOC) issued for the appeal herein. The Veteran did not waive AOJ review of this additional evidence. In addition, prior to certification and transfer to the Board, the Veteran provided additional private medical evidence and no SSOC was issued. However, as the claims herein must be remanded for additional development, there is no prejudice to the Veteran in this regard. These matters were initially before the Board in June 2018 when they were remanded for further evidentiary development. They now returns for appellate review. However, as discussed below, the Board finds that there has not been substantial compliance with the June 2018 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a disability manifested by body aches is remanded. The June 2018 Board remand, directed in pertinent part, that the potential examiner identify any current disability associated with the Veteran’s claimed body aches, and for any diagnosis identified, opine as to whether it was at least as likely as not that the disorder manifested in service or was otherwise causally or etiologically related to service. The June 2018 Board remand further directed that in rendering the requested opinion, the potential examiner specifically consider the Veteran’s October 1971 report of medical history noting swollen and painful joints. Pursuant to the June 2018 Board remand, an April 2019 fibromyalgia disability benefits questionnaire (DBQ) was obtained. However, the April 2019 VA examiner focused solely on the lack of a fibromyalgia diagnosis but did not address the broader question of whether the Veteran had a disability manifested by body aches or whether it was a symptom or manifestation of another disability. Further, the April 2019 examiner found, in part, the Veteran’s service treatment records were without clinical and objective evidence that supported a fibromyalgia diagnosis. Thus, the April 2019 examiner’s opinion does not reflect consideration of the Veteran’s October 1971 report of medical history noting swollen and painful joints, as directed by the Board in the prior remand directive. The April 2019 examiner’s opinion also does not reflect consideration of a March 2017 private medical letter, from Dr. J. Padilla Ortiz, which indicated, in part, a diagnosis of body pains. Also, the Board recognizes, in a November 2015 notice of disagreement, the Veteran generally indicated his pains showed symptoms of neuropathy and was presumed to be related to Agent Orange; however, as a final September 2014 rating decision, in part, denied service connection for peripheral neuropathy the Board will not address this contention further. Accordingly, another examination addressing the October 1971 report of medical history and the March 2017 private medical letter from Dr. J. Padilla Ortiz is warranted; however, the examination report should not address any reported peripheral neuropathy. Additionally, pursuant to the June 2018 Board remand, VA sent, in February 2019, the Veteran a VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs, so he could provide authorization for VA to obtain treatment information from any relevant healthcare provider. In response, in a March 2019 statement, the Veteran reported there were no new doctors and those had treated him for body aches or chronic fatigue syndrome had either retired or were deceased. However, in October 2019, the context of another claim, the Veteran provided a VA Form 21-4142, and reported private treatment from several medical providers, including Dr. I. Gonzalez Cancel, affiliated with Centro Cardiovascular de Puerto Rico. However, the VA correspondence requesting Dr. I. Gonzalez Cancel provide the Veteran’s medical records was returned for an insufficient address, which is consistent with review of this correspondence. Also, although other medical records from other providers were requested, they were not all received. These records could be relevant to this claim as well as to the other claims remanded below. Accordingly, remand is required to allow VA to obtain authorization and again request any relevant records identified by the Veteran. The June 2018 Board remand also noted that the July 2015 rating decision referenced a May 19, 2015 VA examination report as evidence; however, that report was not of record and directed an attempt be made to secure a copy of the report. However, while the resulting development reflects additional VA treatment records were obtained, included dated during May 2015, these records do not contain a copy of this report. Thus, on remand, efforts should be made to obtain a copy of the May 19, 2015 VA examination report. Lastly, in light of the remand of this claim for other matters, and as the record reflects the Veteran receives continuing treatment at the San Juan VA Medical Center, part of the VA Caribbean Healthcare System, updated VA treatment records, from December 2020 to the present, should be obtained and associated with the record. 2. Entitlement to service connection for a disability manifested by fatigue, to include chronic fatigue syndrome, is remanded. Pursuant to the June 2018 Board remand, an April 2019 chronic fatigue syndrome DBQ was obtained. However, the April 2019 VA examiner focused solely on the lack of a diagnosis of chronic fatigue syndrome but did not address the broader question of whether the Veteran had a disability manifested by fatigue or whether it was a symptom or manifestation of another disability. In this regard, February 2017 and April 2019 heart conditions DBQs endorsed fatigue as a symptom of a heart disability. Also, the April 2019 examiner’s opinion does not reflect consideration of a March 2017 private medical letter, from Dr. J. Padilla Ortiz, which indicated, in part, a diagnosis of chronic fatigue syndrome. Accordingly, another examination is warranted. Stegall, 11 Vet. App. at 271. 3. Entitlement to a TDIU is remanded. The issue of entitlement to TDIU is intertwined with the above remanded claims, as such could affect whether the Veteran meets the schedular criteria for a TDIU, as he currently does not satisfy the schedular criteria for the entire appeal period at issue. Thus, a remand is warranted for the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Obtain any of the Veteran’s updated VA treatment records, from the VA Caribbean Healthcare System, from December 2020 to the present. 2. Request from all appropriate source(s) a complete copy of a May 19, 2015 VA examination report that might exist. Efforts to obtain the May 19, 2015 VA examination report should be fully documented, and should be discontinued only if it is concluded that the report sought does not exist or that further efforts to obtain the evidence would be futile. The May 19, 2015 VA examination report, if procured, should be associated with the record. If the May 19, 2015 VA examination report is not available, the record should be annotated to reflect that fact, and the Veteran should be notified of the inability to obtain the requested report. 3. Ask the Veteran to complete a VA Form 21-4142 for any relevant medical providers, to include Dr. I. Gonzalez Cancel. Make two requests for the authorized records from any identified medical provider, unless it is clear after the first request that a second request would be futile. 4. Schedule the Veteran for a VA examination for his claims for a disability manifested by body aches and a disability manifested by fatigue, to include chronic fatigue syndrome. The examiner must review the claims file. (a) Please identify by diagnosis any separate disability manifested by body aches (excluding any reported peripheral neuropathy). The examiner should identify if body aches are instead symptoms or manifestations of another disability. In this regard, the examiner should also consider the March 2017 private medical letter from Dr. J. Padilla Ortiz, which indicated, in part, diagnoses of chronic fatigue syndrome and body pains. (b) If a diagnosis cannot be provided for a separate disability manifested by body aches, but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should identify the symptoms and consider them a “disability” (c) Please identify by diagnosis any disability manifested by fatigue. The examiner should identify if fatigue is instead a symptom or manifestation of another disability. In this regard, the examiner should also consider the March 2017 private medical letter from Dr. J. Padilla Ortiz, which indicated, in part, diagnoses of chronic fatigue syndrome and body pains. (d) If a diagnosis cannot be provided for a separate disability manifested by fatigue, but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should identify the symptoms and consider them a “disability” As to each separate disability identified, the examiner is asked to provide a response to the following: (a) Is a disability manifested by body aches at least as likely as not related to service? The examiner should consider the Veteran’s October 1971 report of medical history noting swollen and painful joints. Please explain the reasoning supporting the opinion provided. (b) Is a disability manifested by fatigue at least as likely as not related to service? Please explain the reasoning supporting the opinion provided. 5. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Espinoza, 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.