Citation Nr: 1416056 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 08-26 175 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to higher evaluations for service-connected residuals of liposarcoma of the left medial thigh, combined at 50 percent, effective from February 1, 2008, and combined at 60 percent, effective from November 21, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fleming, Counsel REMAND The Veteran had active military service from April 1966 to April 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. By this action, the RO reduced a 100 percent rating for the Veteran's liposarcoma of the left medial thigh to 10 percent, effective from February 1, 2008. Subsequently, in July 2009, the RO awarded service connection for chronic fatigue syndrome, rated as 40 percent disabling, and for scar of the left medial thigh, rated as noncompensably disabling, both as residuals of liposarcoma of the left medial thigh. This action set the combined disability rating for residuals of the Veteran's liposarcoma of the left medial thigh at 50 percent, effective from February 1, 2008. The Veteran timely appealed this decision. In a January 2012 decision, the Board awarded the Veteran a 10 percent disability rating for his scar of the left medial thigh but otherwise found the reduction proper. In May 2013, the United States Court of Appeal for Veterans Claims (Court) issued a memorandum decision in which it set aside and remanded the Board's January 2012 decision for re-adjudication. The Court found that the reduction amounted to a claim for an increased rating, and consequently the issue of entitlement to a total disability rating based on unemployability due to service-connected disability (TDIU) should have been addressed by the Board. Subsequent to the Court's action, the RO issued a rating decision, dated in October 2013, in which it awarded a TDIU, effective November 21, 2012, and an increased rating of 20 percent for the muscle damage due to liposarcoma of the left medial thigh, also effective November 21, 2012. The Board further notes that the Veteran has indicated on multiple occasions, including at his May 2009 VA examination, that he has been unable to work due at least in part to his service-connected chronic fatigue. The Court has held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part of the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. The Court reiterated in the May 2013 memorandum decision that, because the Veteran's case involved a claim for increase rather than a question of propriety of a reduction, it necessarily required consideration of entitlement to a TDIU. As such, the Board will address the question of entitlement to TDIU prior to November 21, 2012. The Board finds that further evidentiary development is necessary before a decision can be reached on the propriety of a reduction from a disability evaluation of 100 percent for service-connected residuals of liposarcoma of the left medial thigh to a combined 50 percent rating, effective from February 1, 2008, and a combined 60 percent rating, effective from November 21, 2012. As noted above, the RO issued a rating decision in October 2013 awarding an increased rating to 20 percent, for muscle damage due to liposarcoma of the left medial thigh, and denying the claims for increase ratings for his scar of the left thigh and fatigue. The RO also granted the Veteran entitlement to a TDIU, effective November 21, 2012. In so doing, the RO changed the Diagnostic Code used to evaluate the muscle disorder, from Diagnostic Code 5315, governing injuries to Muscle Group XV, to Diagnostic Code 5317, governing injuries to Muscle Group XVII. See 38 C.F.R. § 4.73 (2013). In addition, the Board notes that the RO's October 2013 ratings were based in part on a VA examination conducted in June 2013, as well as on records from the Veteran's ongoing treatment with VA providers. However, the RO did not issue a supplemental statement of the case (SSOC) addressing the newly obtained evidence or the ratings assigned in the October 2013 rating decision. As discussed above, the Court held in the May 2013 memorandum decision that the claim that was originally appealed to the Board is "essentially a claim for an increased rating." For that reason, and because pursuant to that initial claim the RO awarded an increased disability rating for liposarcoma of the left medial thigh and entitlement to a TDIU for part of the appeal period, the questions of whether higher ratings should now be assigned for service-connected residuals of liposarcoma of the left medial thigh, chronic fatigue syndrome, and scar of the left medial thigh, as well as entitlement to a TDIU for that part of the appeal period prior to November 21, 2012, remain on appeal. When additional evidentiary development is undertaken by the agency of original jurisdiction (AOJ) on an issue on appeal, an SSOC is required. 38 C.F.R. §§ 19.31, 19.37 (2013). Here, however, after awarding the increased rating for liposarcoma of the left medial thigh and entitlement to a TDIU, effective November 21, 2012, and denying claims for increase for scar of the left medial thigh and chronic fatigue syndrome in the October 2013 rating decision, the RO did not prepare an SSOC, and no withdrawal of the appeal of these questions was submitted by the Veteran. Because the Court has indicated that the appeal is for an increased rating rather than a question regarding propriety of reduction, a remand is required so that an SSOC may be issued. In view of the foregoing, the case is REMANDED for the following action: The AOJ must issue an SSOC that specifically addresses the ratings for service-connected residuals of liposarcoma of the left medial thigh, fatigue, and scar of the left medial thigh, as well as entitlement to a TDIU prior to November 21, 2012. The pertinent rating criteria must be cited and the evidence addressed in the AOJ's analysis. The Veteran should be afforded the appropriate period for response before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 Supp. 2013). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board 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) (2013).