Citation Nr: 1801872	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  13-13 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Medical and Regional Office Center in
Fargo, North Dakota


THE ISSUES

1. Entitlement to a disability rating higher than 20 percent for myofascial pain syndrome (claimed as low back disability).

2. Entitlement to a disability rating higher than 10 percent for right knee disability status post arthroscopy and partial medial meniscectomy, with scars. 

3. Entitlement to a disability rating higher than 0 percent for rhinitis.

4. Entitlement to a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

K. J. Kunz, Counsel


INTRODUCTION

The Veteran served on active duty from December 2005 to May 2006, from November 2006 to February 2008, and from November 2009 to March 2011.

These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota.

In an October 2011 rating decision, the RO granted service connection for right knee disability, and assigned a 10 percent disability rating. In a February 2012 rating decision, the RO granted service connection for myofascial pain syndrome (claimed as low back disability), and assigned a 20 percent disability rating. In a March 2012 rating decision, the RO denied a TDIU.

In April 2014, the Veteran had a Board videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record.

In May 2014, and again in December 2016, the Board remanded the case to the RO to develop additional evidence. The RO developed additional evidence and returned the case to the Board.

In a June 2017 rating decision, the RO continued a 0 percent disability rating for rhinitis.

Unfortunately, additional action is needed on the issues of the ratings for myofascial pain syndrome and rhinitis, and on the TDIU issue. Therefore, the case is again REMANDED to the Agency of Original Jurisdiction (in this case, the RO).


FINDINGS OF FACT

1. From March 2, 2011, to April 14, 2011, right knee disability was manifested by damage of the meniscus and pain, popping, and swelling of the knee.


2. From June 1, 2011, to June 14, 2012, and from December 1, 2012, forward, right knee disability, status post partial meniscectomy, has been manifested by symptoms including pain, without instability, and without limitation of flexion to 45 degrees or less or limitation of extension to 10 degrees or more.


CONCLUSIONS OF LAW

1. From March 2, 2011, to April 14, 2011, right knee disability met the criteria for a 20 percent rating. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4 including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258,5259, 5260, 5261 (2017).

2. From June 1, 2011, to June 14, 2012, and from December 1, 2012, onward right knee disability has not met the criteria for a rating higher than 10 percent. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4 including §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5256, 5257, 5258,5259, 5260, 5261 (2017).



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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2017). Under the notice requirements, VA is to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). 

In Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked.

The RO provided the Veteran notice in letters issued in 2011 and 2012. In those letters, the RO notified him what information was needed to substantiate claims for service connection. The letters also addressed how VA assigns disability ratings and effective dates.

In the April 2014 Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), and has not identified any prejudice in the conduct of the hearing. The Board therefore finds that the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in providing further notice during the hearing constitutes harmless error.

The claims file contains service medical records, post-service medical records, and reports of VA medical examinations. The examination reports and other assembled records are adequate and sufficient to reach decisions on the issue that the Board is deciding at this time. With respect to that issue, the RO substantially fulfilled the instructions in the 2014 and 2016 Board remands.

The Board finds that the Veteran was notified and aware of the evidence needed to substantiate the claim, and the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining evidence. The Veteran actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so.

Right Knee Disability

The Veteran contends that the manifestations and effects of his right knee disability warrant disability ratings higher than the 10 percent rating that the RO has assigned. He sustained right knee injury in service in 2010. In March 2011 he sought service connection for several disabilities including right knee disability. In April 2011 he underwent right knee surgery. In an October 2011 rating decision, the RO granted service connection, effective March 2, 2011, for right knee disability. The RO assigned a 10 percent initial rating effective March 2, 2011. The RO assigned a temporary total (100 percent) rating for convalescence from surgery, effective from April 15, 2011, through May 31, 2011. The RO assigned a 10 percent rating from June 1, 2011. In June 2011 the Veteran submitted a notice of disagreement (NOD), initiating appeal of the ratings assigned in the October 2011 rating decision.

In June 2012 the Veteran underwent another right knee surgery. In a July 2012 rating decision, the RO granted a temporary total rating beginning June 15, 2012, The RO assigned a 10 rating resuming August 1, 2012. Twice in 2012 the Veteran requested extensions of the total rating. The RO ultimately granted extension of the total rating through November 30, 2012, with resumption of a 10 percent rating from December 1, 2012. In January 2013 the Veteran again sought an increased rating for the right knee disability.

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2.

The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court has indicated that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until a final decision is made. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appealed the initial 10 percent rating, and has continued to appeal the 10 percent ratings assigned for all periods when a temporary total rating was not in effect. He is thus seeking ratings higher than 10 percent for the periods from March 2, 2011, to April 14, 2011, from June 1, 2011, to June 14, 2012, and from December 1, 2012, forward.

When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2017); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1).

The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

The RO has described the Veteran's right knee disability as status post arthroscopy and partial medial meniscectomy, with scars. The RO has evaluated the disability under 38 C.F.R. § 4.71a, Diagnostic Code 5259. Under that code, a 10 percent rating is assigned following removal of the semilunar cartilage if the post-surgical knee is symptomatic. Under Diagnostic Code 5258, a 20 percent rating is assigned for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.

Arthritis in a joint is rated based on limitation of motion of the joint. 38 U.S.C.A. § 4.71a, Diagnostic Code 5003. Limitation of motion of the leg at the knee is rated under Diagnostic Codes 5260 and 5261. Those codes provide for compensable, 10 percent or higher ratings if flexion is limited to 45 degrees or less, or extension is limited to 10 degrees or more short of full extension. The rating schedule also provides for ratings based on ankylosis of the knee, at Diagnostic Code 5256, instability of the knee, at Diagnostic Code 5257, impairment of the tibia and fibula, at Diagnostic Code 5262, and genu recurvatum, at Diagnostic Code 5263.

When evaluation of a musculoskeletal disability is based on limitation of motion, VA regulations provide, and the United States Court of Appeals for Veterans Claims (Court) has emphasized, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened movement, 

excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2015); see DeLuca v. Brown, 8 Vet. App. 202 (1995). In addition, VA regulations indicate, and the Court has emphasized, that testing of range of motion of joints that have painful motion should include both active and passive motion, motion in weight-bearing and non-weight-bearing, and, if possible, the range of motion of the opposite undamaged joint. 38 C.F.R. § 4.59; see Correia v. McDonald, 28 Vet. App. 158 (2016).

Generally, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). In a precedent opinion, however, the VA General Counsel indicated that separate ratings for arthritis and instability may be assigned when a knee has both. See VAOPGCPREC 23-1997 (1997). Similarly, the VA General Counsel indicated that, when a leg has both limitation of flexion and limitation of extension at the knee, the limitation of flexion and limitation of extension must each be rated separately to adequately compensate for functional loss associated with injury to the leg. See VAOPGCPREC 9-2004 (2004).

Scars that are not on the head, face, or neck, and are not unstable, or painful, are bit assigned a compensable rating unless they have a total areas of at least 6 square inches or 39 square centimeters. 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805 (2017).

In treatment in service in December 2010, the Veteran reported that in May 2010 he twisted his right knee. He indicated that right knee pain had continued since. He stated that physical problems made it somewhat difficult to do his work and daily activities. In a March 2011 post-deployment health assessment the Veteran reported that during his 2010 deployment he sustained knee injury. He related ongoing joint swelling, stiffness, or pain. He stated that physical problems made it very difficult for him to do his work and daily activities. 

In VA treatment in March 2011, the Veteran reported that in May 2010, while doing deep knee bends, he heard a pop in his right knee. He stated that the knee had bruising and swelling the next day. He stated that pain that was worse with activity had continued since then. He indicated stiffness in the knee after sitting for a time. The knee appeared normal on x-rays.

In private treatment in March 2011, the Veteran reported that in May 2010, while he was doing exercises including squats, his right knee popped. He stated that the knee bruised and swelling immediately. He related that the knee was quite horribly tender then, and had been so intermittently since then. He indicated that presently the knee was sore and it popped painfully. A treating physician noted that the right knee appeared normal on VA x-rays. The physician observed that the Veteran had a slight antalgic limp on the right. In the right knee, there was pain with deep passive flexion, with McMurray's maneuver, and with palpation. The right vastus medialis muscle was noticeably wasted compared to that muscle in the left leg. The physician diagnosed a tear of the posterior horn of the medial meniscus. The physician recommended surgery.

The Veteran underwent surgery in April 2011. In that surgery, a medial meniscus tear was confirmed, and the posterior horn of the medial meniscus was removed.

On VA examination in September 2011, the Veteran reported that since the April 2011 right knee surgery he continued to have constant pain and swelling in that knee that was aggravated by standing and walking. He did not use any assistive devices. The examiner noted tenderness of the knee. The knee had flexion to 110 degrees and extension to 0 degrees, with no objective evidence of painful motion. After three repetitions there was no change in the range of motion. The knee had full muscle strength. On testing the knee had no instability. The examiner found that the right knee disability made the Veteran unable to do work that required prolonged walking or heavy lifting.

In June 2012, the Veteran appealed the 10 percent rating for his right knee disability. He stated that he had not been able to work since his March 2011 separation from service, and that his knee and back problems kept him from being able to seek work. On June 15, 2012, he underwent another right knee surgery. The surgery included bursa removal.

In VA treatment in August 2012, he reported constant right knee pain, worse with walking, prolonged driving, and at night when the leg was straight. He reported sensations of the knee giving out, as though it would not hold his weight, nearly every time he had to step up. A clinician observed a slightly limping gait. In private physical therapy in September 2012, the Veteran reported pain and fluid in his right knee, and intermittent use of a Neoprene wrap for swelling reduction. He stated that the knee buckled, and that he was able to catch himself before he fell. In October 2012 he reported possibly some recovery of strength in the knee. A clinician noted that he continued to have a right sided limp with walking. In VA treatment in November 2012, the Veteran reported significant chronic knee pain. In December 2012, it was reported that his knee pain was stable without medication. He walked without trouble and with a steady gait. 

In VA treatment in March 2013, the Veteran reported right knee pain, treated with medication, including at night if he could not sleep. He stated that he was working 48 hours a week at a counseling and correctional facility. He stated that he was mostly on his feet for twelve hour shifts, and that he had increased right knee pain. A clinician observed that he walked without trouble and with a steady gait. Another clinician noted that when the Veteran sat it was evident that he was experiencing some pain. 

In a March 2013 statement, the Veteran wrote that his right knee had painful motion and was supported by an elastic brace. He stated that the knee had constant swelling that was not controlled well. He indicated that his right knee and back problems made him unable to remove snow or cut grass to maintain his yard.

Notes from VA treatment of the Veteran in May 2013 reflect that he continued on pain medication. A clinician observed that he walked without trouble and with a steady limping gait. The right knee had crepitus. On testing there was no evidence of instability. In January 2014 the Veteran reported ongoing right knee trouble, worse with weightbearing. A clinician noted swelling of the right knee compared to the left. The Veteran continued on pain medication. 

In the April 2014 Board hearing, the Veteran reported worsening of his right knee disability. He reported that he had constant pain in the knee, and pain on motion with flexion and extension. He indicated that the knee was unstable, and gave way a couple of times a day. He related that he could climb one flight of stairs, but that his knee problems made him unable to climb more. He reported that knee pain interfered with sleep, affected his ability to drive, and made him unable to bend, to mow his lawn, or to shovel snow. He related that he was working part time, seventeen hours a week at a retail store, with accommodations such as breaks and not having to lift things. He indicated that a manager was writing him up because his pain limited his capacity.

On VA examination in August 2014, the Veteran reported that his right knee had ongoing pain and swelling that was aggravated by standing and walking. He did not report using any assistive devices when walking. The examiner reported having reviewed the claims file. The examiner found that the right knee had no swelling or tenderness, no warmth to the touch, and no pain with manipulation. The right knee had flexion to 120 degrees and extension to 0 degrees, with no objective evidence of painful motion. After three repetitions the range of motion was the same. The left knee had the same range of motion. On stability testing the right knee was normal. It was noted that the Veteran had surgery with partial meniscectomy in 2011. The examiner stated that the symptoms residual to meniscectomy were swelling and occasional pain. The examiner found that right knee surgical scars were stable, were not painful, and had a total area not greater than 39 square centimeters or six square inches. Right knee x-rays showed mild degenerative change. The examiner stated that the Veteran's right knee condition did not impact his ability to work.

In VA treatment in December 2016, the Veteran reported ongoing knee problems. He indicated that he worked in a retail store.

On VA examination in February 2017, it was noted that the Veteran sustained right knee injury in 2010, and that he had right knee surgeries in April 2011 and June 2012. In February 2017 the Veteran reported right knee pain. The examiner found that the right knee had flexion to 115 degrees and extension to 0 degrees. There was pain with flexion. The examiner found that the pain with flexion did not result in functional loss. There was no evidence of pain with weightbearing, with nonweightbearing, or with passive motion. There was no additional limitation of motion after repetitive use testing. There was mild tenderness to palpation of the knee. The unaffected left knee had full ranges of motion without pain. On stability testing, the right knee had no instability. The Veteran did not use any assistive devices with standing or walking. Right knee x-rays showed minimal degenerative changes. The examiner expressed the opinion that the right knee disability did not impact the Veteran's ability to sit, stand, walk, lift, or perform any other occupational tasks.

From service connection immediately following separation from service on March 2, 2011, through April 14, 2011, immediately preceding the first knee surgery, the Veteran reported intermittent right knee pain and swelling. During that period a physician made a diagnosis of meniscus tear that was confirmed in the 2011 surgery. A physician also noted muscle wasting in the right leg. As there was active meniscal damage and objective evidence of symptoms, the disorder during that period was arguably more consistent with the criteria for a 20 percent rating under Diagnostic Code 5258 than the criteria for a 10 percent rating under Diagnostic Code 5259. The Board therefore grants a 20 percent rating for that period.

During that period the Veteran's right knee was not found to be in ankylosis, nor to have limitation of flexion or extension that warrants any compensable rating. There was no indication of instability of the knee, tibia or fibula impairment, or genu recurvatum. Thus there was no basis for a rating higher than 20 percent under any Diagnostic Code.

From June 1, 2011, following convalescence from the first surgery, to June 14, 2012, just before the second surgery, and from December 1, 2012, following convalescence from the second surgery, the Veteran's right meniscus was partially removed, and he continued to have right knee symptoms including pain, consistent with the criteria for the assigned 10 percent rating under Diagnostic Code 5259.

The Veteran's March 2013 statement that his right knee was supported by an elastic brace suggests instability in that knee. In the April 2014 Board hearing, he reported instability in the knee. However, on VA testing of the stability of that knee, including on examination in September 2011, in treatment in May 2013, and on examinations in August 2014 and February 2017, there was no objective evidence of instability. In considering whether instability is sufficiently shown to assign a separate rating under Diagnostic Code 5257, the Board finds that both the Veteran's accounts and the test results have persuasive weight.  Lyles v. Shulkin, Vet. App. No. 16-994 (2017).  On careful consideration, the Board concludes that the multiple negative test results are more persuasive than the Veteran's accounts. The Board concludes, then, that the greater persuasive weight of the evidence is against the presence of instability. Therefore a separate rating for instability is not warranted.

During those two periods the Veteran's right knee has not been found to be in ankylosis, nor to have had limitation of flexion or extension to a degree that warrants any compensable rating. There has been no indication that the knee has had tibia or fibula impairment, or genu recurvatum. Thus there has been no basis for a rating higher than 10 percent under any Diagnostic Code.

From March 2, 2011, to April 14, 2011, from June 1, 2011, to June 14, 2012, and from December 1, 2012, forward, the Veteran's right knee disability has required two surgeries. Two surgeries over that period do not constitute frequent hospitalizations. He has at times reported that the combination of right knee and low back problems interfered with his capacity for employment. He has not asserted, and the evidence does not indicate, that his right knee disability by itself has interfered with his employment capacity to an extent that rises to the level of marked. The rating criteria appropriately address the effects of his right knee disability. Therefore, it is not necessary to refer the issue of ratings for that disability for consideration of extraschedular ratings.

The Court has indicated that VA must consider, in an increased rating claim, whether the record indirectly raises the issue of unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case the issue of a TDIU is directly and currently on appeal, and is addressed in the remand section, below.


ORDER

From March 2, 2011, to April 14, 2011, a 20 percent rating for right knee disability is granted, subject to the laws and regulations controlling the disbursement of monetary benefits.

From June 1, 2011, to June 14, 2012, and from December 1, 2012, forward, a rating higher than 10 percent for right knee disability is denied.


REMAND

The Board is remanding to the RO, for additional action, the issues of the ratings for myofascial pain syndrome (affecting the low back) and for rhinitis, and the TDIU issue.

As noted above, in Correia v. McDonald, supra, the Court emphasized that testing of range of motion of joints that have painful motion should include both active and passive motion, motion in weight-bearing and non-weight-bearing, and, if possible, the range of motion of the opposite undamaged joint. In the December 2016 remand the Board instructed that the Veteran receive an examination of his back that addressed those factors. The report of the February 2017 VA examination of the Veteran's back addressed some of those factors, but did not address both active and passive ranges of motion of his low back. The Board is remanding the rating issue for a new examination to address all of the relevant factors.

In April 2017 the Veteran submitted a claim for an increased rating for rhinitis. In a June 2017 rating decision, the RO continued the 0 percent rating for rhinitis. In September 2017 the Veteran submitted a notice of disagreement (NOD) with that rating decision. When a claimant files a timely NOD, the agency of original jurisdiction (in this case, the RO) must prepare and send to the claimant a statement of the case (SOC). 38 C.F.R. § 19.26 (2015). The RO has not sent the Veteran an SOC addressing his appeal of the June 2017 rating decision denying an increased rating for rhinitis. The Court has indicated that when a claimant submits an NOD, and the RO does not issue an SOC on the issues addressed by the NOD, the Board should remand the issue to the RO for the issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The Board therefore remands the issue of an increased rating for rhinitis for the RO to issue an SOC.

The Veteran's pending appeal for a TDIU may be affected by the outcomes of his pending appeals for higher ratings for myofascial pain syndrome affecting the low back and for rhinitis. The Board is remanding the TDIU for the RO to reconsider after addressing those issues.

Accordingly, the case is REMANDED for the following action:

1. Issue to the Veteran and his representative a statement of the case addressing the issue of an increased rating for rhinitis. Advise the Veteran and his representative of the time limit in which he may file a substantive appeal as to that issue. 

2. Schedule the Veteran for a new VA medical examination to further clarify the current effects of his myofascial pain syndrome affecting the low back. disability. Provide his claims file to the examiner for review. Ask the examiner to test and report the ranges of motion, and any evidence of pain on motion, of the Veteran's thoracolumbar spine in active motion, passive motion, weight-bearing, and non-weight-bearing. Ask the examiner to indicate whether there is objective evidence of weakness, excess fatigability, and/or incoordination associated with the myofascial pain syndrome affecting the low back. Ask the examiner to discuss the effects of the myofascial pain syndrome affecting the low back on the Veteran's functional ability, including his capacity for employment.

3. Then review the expanded claims file, including any added information about the myofascial pain syndrome affecting the back and about the rhinitis, and reconsider the TDIU claim.

4. Then, if appeal of the rating for rhinitis is timely perfected, return that issue to the Board for appellate consideration, if otherwise in order.

5. Then, if the issue of the rating for myofascial pain syndrome affecting the back, and/or the issue of entitlement to a TDIU, is not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case and give them an opportunity to respond before returning the file to the Board for further appellate consideration.

The Board intimates no opinion as to the ultimate outcome of the matters that the Board has remanded. The Veteran has the right to submit additional evidence and argument on those matters. Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim 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).



______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs