Citation Nr: 22010262 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 18-04 195 DATE: February 23, 2022 REMANDED Entitlement to an initial rating in excess of 20 percent prior to December 16, 2016, and to a rating in excess of 40 percent from December 16, 2016, forward, for service-connected chronic fatigue syndrome (CFS) is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar sprain with degenerative changes is remanded. REASONS FOR REMAND The Veteran served active duty in the U.S. Army from November 1990 to September 1991 and in the U.S. Marine Corps from May 1996 to May 2015. These matters come before the Board of Veterans' Appeals (Board) on appeal of an October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). See October 2015 Rating Decision (granting service connection for CFS, evaluated as 20 percent disabling effective from June 1, 2015, and lumbar sprain with degenerative changes, evaluated at 10 percent disabling from June 1, 2015, forward). A subsequent December 2017 rating decision granted an increased 40 percent rating for the service-connected CFS, effective from December 16, 2016, forward. See December 2017 Rating Decision. Accordingly, the issue has been characterized as reflected above. In October 2021, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ) of the Board; a transcript of that hearing is of record. Unfortunately, additional development is necessary before the Board can adjudicate these claims. While the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the claims so that the Veteran is afforded every possible consideration. 1. Entitlement to an initial rating in excess of 20 percent prior to December 16, 2016, and to a rating in excess of 40 percent from December 16, 2016, forward, for service-connected CFS is remanded. 2. Entitlement to an initial rating in excess of 10 percent for service-connected lumbar sprain with degenerative changes is remanded. The Veteran contends that his service-connected CFS and lumbar spine disability are more severely disabling than reflected by the evaluations currently assigned. See, e.g., October 2016 Notice of Disagreement (VA Form 21-0958); January 2018 Substantive Appeal (VA Form 9); October 2021 Board Hearing Transcript. The Board finds that new examinations are warranted to assess the current nature and severity of the Veteran's service-connected CFS and low back disorder. See 38 C.F.R. § 3.327(a) (providing that reexaminations will be requested whenever VA needs to determine the current severity of a disability). In this regard, the Veteran was last provided VA examinations concerning these service-connected disabilities in December 2016, so more than five years ago. See December 2016 VA Chronic Fatigue Syndrome Disability Benefits Questionnaire (DBQ); December 2016 Back Conditions DBQ. Given the Veteran's continued assertion that these service-connected disabilities are more severely disabling than reflected in the currently assigned ratings, and in light of the amount of time since his last examination for these disabilities and the possible increase in their severity since, reexamination is needed to fully and fairly evaluate the conditions on appeal. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007), citing Caluza v. Brown, 7 Vet. App. 498, 505-06 (1998) ("Where the record does not adequately reveal the current state of the claimant's disability... the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination."). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating). In addition, as the case is being remanded, the Veteran should be given another opportunity to identify any records of private medical treatment that he would like to submit or have VA obtain, especially since it appears that he is undergoing private medical treatment for his low back disorder. Any recent outstanding VA treatment records should also be obtained. The matters are REMANDED for the following action: 1. Send a letter to the Veteran requesting him to identify any relevant outstanding private treatment records and any other relevant evidence pertaining to his claims. He should be invited to submit this evidence himself or to request VA to obtain it on his behalf. Authorized release forms (VA Form 21-4142) should be provided for this purpose. If the Veteran properly fills out and returns any authorized release forms for private records identified by him, reasonable efforts should be made to obtain such records and associate them with the VBMS virtual file. At least two such efforts should be made unless it is clear that a second effort would be futile. If attempts to obtain any records identified by the Veteran are not successful, he must be notified of this fact and all efforts to obtain them must be documented and associated with the claims file. 2. Obtain and associate with the claims folder any outstanding VA treatment records. 3. Thereafter, upon receipt of all additional records, and any additional notification and/or development deemed warranted, schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and current level of severity of his service-connected chronic fatigue syndrome. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to the service-connected disability. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). After examining the Veteran, evaluating the current nature and severity of his service-connected CFS, reviewing the Veteran's full history by conducting a complete review of the claims file (including all available lay statements, private and VA medical treatment records, and examination reports), the examiner should, to the extent possible, identify any symptoms and functional impairments due to his CFS and discuss the effect of the Veteran's CFS on any occupational functioning and activities of daily living. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 4. Schedule the Veteran for a VA examination with an appropriate examiner to assess the nature and current level of severity of his service-connected low back condition. The examination may be conducted via telehealth or similar service during the social distancing restrictions of the COVID-19 pandemic. The entire claims file and a copy of this REMAND must be made available to the examiner prior to the examination. The examiner should report all manifestations related to the service-connected disability. The examiner must note in the examination report that the evidence in the claims file has been reviewed. All indicated tests and studies should be accomplished, and all clinical findings should be reported in detail. If possible, the appropriate Disability Benefits Questionnaires (DBQs) should be filled out for this purpose. The examiner should provide additional diagnoses or make a change to a diagnosis where medically justified, with an explanation of the justification for any such change. See 38 C.F.R. § 4.13 (reflecting that the aim of the reconciliation of the various diagnoses and etiological theories of record is to identify and maintain, or continue, the diagnosis or etiology upon which service connection for the disability was initially granted). The examiner should identify and describe in detail all orthopedic and neurological manifestations of the Veteran's service-connected low back condition. Additionally, the examiner must also specifically state whether the Veteran has any symptoms due solely to any other service-connected or nonservice-connected conditions. After examining the Veteran, evaluating the current nature and severity of his service-connected low back disability, reviewing the Veteran's full history by conducting a complete review of the claims file (including all available lay statements, private and VA medical treatment records, and examination reports), the examiner must: (i) Test and document the range of motion (ROM) for each joint in question in active motion, passive motion, weight-bearing, and non-weight-bearing, on both an initial and after-repetitive-use basis. For each ROM, the examining clinician is asked to explicitly identify the degree in which pain is first evidenced by the Veteran's visible behavior. If unable to conduct the required testing or if the determination is made that the required testing is not necessary in this case, the examiner must provide a thorough explanation. (ii) Attempt to elicit information regarding the severity, frequency, and duration of any reported flare-ups, and the degree of functional loss during any such flare-ups. The examiner should assess such impairment in terms of the degree of additional ROM loss and provide an explanation as to how any such determination was made. If it is not possible to provide a specific ROM measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. (iii) Identify the nature and severity of all current manifestations of the Veteran's service-connected back condition. The examiner should describe the extent of any weakened movement, excess fatigability, and incoordination found to be present in terms of the degree of additional ROM loss. Additional limitation following repetitive use over time, if any, must also be noted. (iv) Identify any symptoms and functional impairments due to his service-connected back disability, to the extent possible, and discuss the effect of the Veteran's disability on any occupational functioning and activities of daily living. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. In this regard, the Board emphasizes that the Veteran is competent to report his symptoms and history, and such statements by the Veteran regarding symptomatology and medical history must be specifically acknowledged and considered in formulating any opinions concerning the onset and severity of his disability. If such reports are rejected by the examiner, a reason for doing so must be provided. All examination findings, along with the complete explanation for all opinions expressed, must be set forth in the examination report. If the examiner is unable to answer any question without a resort to speculation, then he or she should so indicate and provide a rationale for why an answer could not be provided. 5. Following completion of the above directive, review the claims file to ensure compliance with this remand. If any examination report does not include adequate responses to the specific opinions requested, it must be returned to the examiner for corrective action. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.