Citation Nr: 1801472 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 13-05 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent disabling for service-connected trapezius muscle strain (right shoulder) and in excess of 20 percent after July 9, 2013. 2. Entitlement to an initial rating in excess of 10 percent disabling for service-connected trapezius muscle strain (left shoulder). 3. Entitlement to an initial compensable rating, and a rating in excess of 10 percent disabling after March 3, 2017, for service-connected chip evulsion fracture of the right ankle. 4. Entitlement to an evaluation in excess of 30 percent disabling for service-connected migraine headaches. 5. Entitlement to an evaluation in excess of 30 percent disabling for service-connected somatic symptom disorder with predominant pain and generalized anxiety. 6. Entitlement to an evaluation in excess of 20 percent disabling for service-connected cervical spine disability. 7. Entitlement to an evaluation in excess of 20 percent disabling for service-connected right arm paresthesias. 8. Entitlement to an evaluation in excess of 10 percent disabling for service-connected musculoligamentous strain of the lumbosacral spine. 9. Entitlement to a compensable evaluation for service-connected chronic pigmented papules. 10. Entitlement to a compensable evaluation for service-connected right hip dysplasia. 11. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Hubers, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from January 1982 to March 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In February 2017, the Board remanded the claims of entitlement to higher evaluations for the right and left shoulder disabilities (trapezius muscle strains) for further development and readjudication. There has been substantial compliance with the Board's remand instructions, so the claim is ready for disposition on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). However, the claims will be remanded for readjudication in light of evidence developed since the most recent Supplemental Statement of the Case. The issue of entitlement to TDIU has been added to the claims on appeal (Issue No. 11), because the Veteran submitted allegations and some evidence of unemployability during the pendency of the increased rating appeal. In such cases, entitlement to TDIU is part and parcel of an increased rating claim, therefore, the Board has jurisdiction of the TDIU claim. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The claims listed above also have been expanded to include eight additional increased rating claims (Issues Nos. 3-10 above). Those claims were denied (in whole or in part) in a September 2017 rating decision. The Veteran filed a Notice of Disagreement thereby initiating an appeal, but the RO has not yet had the opportunity to issue a Statement of the Case with respect to those issues. Under these circumstances, and for further reasons described below, the Board will remand those claims for the issuance of a Statement of the Case. See 38 C.F.R. § 19.9(c). The Veteran indicated in her March 2017 VA Form 9 that she intended to perfect an appeal with respect to entitlement to "a higher rating and earlier effective date for her service-connected trapezius muscle strain, right shoulder." The Board interprets this as requesting an earlier effective date for the increase from 10 percent to 20 percent which is included in the issues on appeal. To the extent the Veteran intended to include a claim of entitlement to an earlier effective date for the grant of service-connection for the trapezius muscle strain of the right shoulder, she did not appeal the effective date assigned in the August 2011 Rating Decision granting that claim. See May 2012 Notice of Disagreement. Therefore, the issue of entitlement to an earlier effective date for the grant of service connection for the trapezius muscle strain of the right shoulder is not on appeal. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND With respect to the Veteran's claims of entitlement to increased ratings for her right and left service-connected trapezius muscle strains, the record contains additional relevant medical evidence that has not yet been considered by the AOJ. See, e.g., July 2017 VA Examinations (discussing, for example, range of motion and muscle strength of the bilateral shoulders). The Veteran has not waived AOJ consideration of that evidence, so the claims must be remanded for readjudication by the AOJ. 38 C.F.R. § 20.1304. Moreover, the Veteran has made extensive argument that her ratings for muscle strain of the left and right trapezius muscle are factually and medically intertwined with her claims relating to sleep disorder (now rated as somatic symptom disorder), migraine headaches, and other musculoskeletal/nerve conditions of the neck, back, and upper extremities. See March 2017 Correspondence from Veteran's Representative ("the veteran made it clear that her claim and subsequent appeal was for problems in regard to her neck, shoulder, upper back region, and migraine, not just the muscle strain of her right and left shoulder"); see also May 2012 Notice of Disagreement. In addition, the interrelation of these claims also implicates the rules regarding pyramiding. See 38 C.F.R. § 4.14 (providing that separate ratings should not be awarded under separate diagnostic codes for duplicative or overlapping symptoms). In all of these circumstances, the Board finds that the trapezius muscle claims (and the issue of TDIU) are inextricably intertwined with the other increased rating claims with respect to which the Veteran has initiated an appeal. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims "are inextricably linked together" where a favorable decision on one "could have a significant impact" the other). As discussed in the Introduction, the Veteran has initiated appeals on the remaining issues listed above. See September 2017 Rating Decision; September 2017 Notice of Disagreement. Because the AOJ has not yet issued a Statement of the Case on those issues, and as those issues are inextricably intertwined with the issues currently certified on appeal, remand is required. See 38 C.F.R. § 19.9(c) (2017), codifying Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: 1. Furnish the Veteran with a 38 C.F.R. § 3.159(b) notice letter addressing her TDIU claim, which is now considered to be part of the appeal. Take any necessary action resulting from the Veteran's response (if any) to this letter. 2. Obtain and associate with the electronic claims file any outstanding, relevant VA treatment records. 3. After completing the above and any further development deemed necessary, readjudicate the claims of entitlement to increased ratings for left and right service-connected trapezius muscle strains and of entitlement to TDIU. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 4. Issue a statement of the case with respect to the claims of entitlement to increased ratings for (1) chip evulsion fracture of the right ankle, (2) migraine headaches, (3) somatic symptom disorder with predominant pain and generalized anxiety, (4) cervical spine disability, (5) right arm paresthesias, (6) musculoligamentous strain of the lumbosacral spine, (7) chronic pigmented papules, and (8) right hip dysplasia. Then, advise the appellant, in writing, of the requirements for perfection of an appeal of those issues. If a timely substantive appeal is not filed, the claims should not be certified to the Board. If appealed, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals 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. §§ 5109B, 7112 (2012). _________________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).