Citation Nr: 1009294 Decision Date: 03/11/10 Archive Date: 03/17/10 DOCKET NO. 96-02 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE 1. Entitlement to an increased rating for a left (nondominant) shoulder strain with tendinitis, currently evaluated as 40 percent disabling. 2. Entitlement to a total disability rating for compensation based on individual unemployability, due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran had active service from May 1965 to August 1968. By its decision, dated October 25, 2007, the Board of Veterans' Appeals (BVA or Board) granted a 30 percent schedular rating, but none greater, for a left (nondominant) shoulder strain with tendinitis based on limitation of motion and, in addition, assigned a 10 percent extraschedular rating for the same disorder. By action of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, in November 2007, a 40 percent evaluation for the Veteran's left shoulder strain was implemented. An appeal of the Board's October 2007 decision was thereafter taken to the United States Court of Appeals for Veterans Claims (Court). The Court by its Memorandum Decision of September 2009 vacated the Board's decision and remanded same to the Board for further action, insofar as the Board failed to adjudicate the issue of the Veteran's entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). REMAND As indicated by the Court, the Veteran has raised the issue of his entitlement to a TDIU on an extraschedular basis, based on his one and only service-connected left shoulder disorder, and neither the RO nor the Board has previously addressed such issue directly or by implication. The Veteran alleges that his left shoulder disorder imposes a significant limitation on the functioning necessary for him to work. He further alleges that he has a variously diagnosed systemic disability, including collagen disease; a mixed connective tissue disorder affecting not only his left shoulder, but also his right shoulder, knees, back, feet, and hands; and systemic myositis and arthritis, and that one or more medical professionals has indicated that such disability has rendered him unemployable. Because the limitations imposed upon the left shoulder cannot reasonably be dissociated from those attributable to other body parts affected by the variously diagnosed systemic disability, then he argues that the Board must consider the "total effect of at least his joint disease symptoms, which is that he is totally disabled and unable to work." To date, the RO has not been afforded the opportunity of initially developing or adjudicating the raised TDIU claim. Moreover, there is a need for additional medical input as to the effects of the Veteran's left shoulder disablement upon his employability and whether his left shoulder manifestations may reasonably be differentiated from those attributable to his mixed connective tissue disorder. As such, remand to the RO is deemed necessary. Also, both the Court and the Veteran's attorney make reference to medical opinion evidence on file as to a purported relationship between the previously referenced systemic disorder and the Veteran's active service, although neither the Court, nor the Veteran, specifically requests the Board to undertake review of that issue. Such is a matter that is, however, intertwined with the Veteran's claim for a TDIU. See, e.g., Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 2 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a veteran's claim for the second issue). Such matter has not to date been the subject of initial RO development and adjudication. Remand is appropriate to permit the RO to undertake initial development and adjudication of the intertwined claim for service connection. Therefore, in order to give the Veteran every consideration with respect to the present appeal, it is the Board's opinion that further development of the case is necessary. This case is being returned to the RO via the Appeals Management Center (AMC) in Washington, D.C., and the Veteran will be notified when further action on his part is required. Accordingly, this case is REMANDED for the following action: 1. Ensure compliance with the provisions of 38 U.S.C.A. §§ 5103, 5103A (West 2002) and 38 C.F.R. § 3.159 (2009), in terms of the raised issues of the Veteran's entitlement to a TDIU on an extraschedular basis and service connection for a systemic disorder, previously diagnosed as collagen disease, a mixed connective tissue disorder, and systemic myositis and arthritis. 2. Obtain all pertinent VA treatment records, not already on file, including but not limited to those compiled since April 2006, for inclusion in the Veteran's VA claims folder. 3. Thereafter, the Veteran should be afforded an examination in order to ascertain the nature and etiology of a claimed systemic disorder, previously diagnosed as collagen disease, mixed connective tissue disorder, and systemic myositis/arthritis, and also to ascertain the nature and severity of his service- connected left shoulder disorder and its impact upon his employability. Following a review of the relevant medical evidence in the claims file, as well as the findings of the examination and any tests deemed necessary, the examiner should address the following questions: (a) Does the Veteran have a systemic disorder, including but not limited to collagen disease, mixed connective tissue disorder, or systemic myositis and arthritis, and, if so, is it at least as likely as not (50 percent or greater degree of probability) that any such disorder began during service, within one year of the Veteran's discharge from service, or is otherwise causally linked to any incident of his active service? (b) Is it at least as likely as not (50 percent or greater degree of probability) that the Veteran's service-connected left shoulder disorder, currently characterized as a left shoulder strain with tendinitis, precludes substantially gainful employment (more than marginal employment) consistent with the Veteran's educational background of a college education and his employment history most recently as a paralegal, but without regard to his age? (c) If and only if the answer to (a) above is that the Veteran does not have a systemic disorder, such as collagen disease, connective tissue disorder, or multiple joint myositis/arthritis, that is related to active service, may the manifestations of the Veteran's service-connected left shoulder disorder be reasonably dissociated from those of any indicated systemic disorder? If so, please differentiate the manifestations reasonably attributable to each. If not, is it at least as likely as not (50 percent or greater degree of probability) that the indistinguishable manifestations attributable to the systemic process and the service-connected left shoulder strain with tendinitis preclude substantially gainful employment (more than marginal employment)? With respect to the questions noted above, the examiner is advised that the term "as likely as not" does not mean within the realm of possibility. Rather, it means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship or a finding of aggravation; less likely weighs against the claim. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. However, if the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. Since it is important "that each disability be viewed in relation to its history[,]" 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran's claims file, or, in the alternative, the claims file, must be made available to the examiner for review in connection with the examination. 4. Thereafter, initially adjudicate the Veteran's intertwined claim for service connection for a systemic disorder, previously referenced as collagen disease, mixed connective tissue disorder, and/or systemic myositis and arthritis, as well as his raised claim for TDIU entitlement on an extraschedular basis. The adjudication of the claim for a TDIU under 38 C.F.R. § 4.16(b) should include referral to the Director, Compensation and Pension Service, for extra-schedular consideration and an opinion as to whether the Veteran is unemployable by reason of service- connected disability. The RO should include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. When the development requested has been completed, the case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran is free to submit any additional evidence and/or argument he desires to have considered in connection with his current appeal. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the Veteran until he is notified. _________________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), 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) (2009).