Citation Nr: 1805045 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 10-45 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to rating in excess of 40 percent for multiple joint stiffness and pain most consistent with rheumatoid arthritis, status post right knee total arthroplasty, prior to May 1, 2014. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 1, 2014. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active service from May 1972 to February 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2015, the Veteran testified before the undersigned Veterans law Judge at a Board hearing in Washington, D.C. A transcript of the hearing has been associated with the record. In May 2016, the Board remanded these matters for further development. The case has now been returned for appellate review. Significantly, in a June 2014 rating decision, the RO awarded a temporary 100 percent rating for the Veteran's rheumatoid arthritis with right knee total arthroplasty from May 1, 2014 to July 1, 2015, and a 40 percent rating thereafter. Further, a May 2016 rating decision also awarded SMC at the housebound rate from May 1, 2014 to July 1, 2015. Subsequently, in a March 2017 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a maximum 100 percent rating for the Veteran's rheumatoid arthritis, effective July 1, 2015, and continued SMC benefits. As the Veteran has been awarded the maximum rating allowed as of May 1, 2014, the issue for an increased rating has been rendered moot as of that date and, thus, the issue has been recharacterized as set forth on the front page of this decision. Moreover, as the Veteran has already been granted an award of SMC based on a total scheduler rating for rheumatoid arthritis and additional service-connected disabilities independently ratable at 60 percent or more, effective May 1, 2014, he would have no need to establish a TDIU rating in order to qualify for SMC under 38 U.S.C.A. § 1114 (s). See Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the issue of entitlement to a TDIU from May 1, 2014 is also rendered moot and this issue has also been recharacterized as set forth on the front page of this decision. The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND By way of background, the Board previously remanded these issues in May 2016 to develop the Veteran's claim for a TDIU, obtain outstanding VA and private treatment records, afford the Veteran a VA examination and issue a supplemental statement of the case (SSOC) if the issues remained denied. Although the RO accomplished most of these directives and issued an SSOC in March 2017 addressing the issue of entitlement to a TDIU, the SSOC failed to address the other issue on appeal of entitlement to an increased rating for rheumatoid arthritis prior to May 1, 2014. As the AOJ did not grant a maximum total rating for this disability prior to May 1, 2014, the issue of an increased rating prior to this date is still on appeal and should have been addressed in an appropriate SSOC. As such, this case must be returned for compliance with the prior May 2016 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As noted above, the Board also directed that the Veteran be afforded a VA examination to address his rheumatoid arthritis. Specifically, the Board found that the examinations reports dated since 2010 have been inconsistent (e.g., multiple conflicting responses in March 2014 and April 2015 reports regarding whether the Veteran has "active process" rheumatoid arthritis, has anemia, or has incapacitating exacerbations). As such, the examiner was asked to determine whether the Veteran's rheumatoid arthritis had been in "active process" at any time since November 2010. The examiner was also asked to determine whether, at any time since November 2010, "active process" rheumatoid arthritis had caused: (i) anemia; (ii) weight loss; (iii) severe impairment of health; or (iv) severely incapacitating exacerbations. In December 2016, it appears that the Veteran was afforded a VA fee-based examination. The examiner observed that the Veteran had incapacitating exacerbations four or more times per year, but found no severe impairment of health. The Veteran was afforded another VA examination in January 2017, which showed that the Veteran's arthritis was in remission, but the examiner still determined that the Veteran arthritis was productive of severe impairment of health and severe incapacitating exacerbations occurring four or more times per year over prolonged periods. However, in a February 2017 opinion, the examiner indicated that there was no active process of the disease since 2010, given the normal RH factors. In sum, while the examiner clearly found no active process, he still found severe impairment of health and severe incapacitating exacerbations due to the Veteran's service-connected disorder. Nevertheless, unfortunately, he still did not indicate at what point since November 2010, had the Veteran's rheumatoid arthritis been productive of such severe impairment as directed by the Board. As such, the Board finds that an addendum opinion is necessary. Although the March 2017 SSOC addressed the issue of entitlement to a TDIU, the issue is inextricably intertwined with the remaining claim on appeal. See Smith (Daniel) v. Gober, 236 F.3d 1370, 1373 (Fed. Cir. 2001) (where the facts underlying separate claims are "intimately connected," the interests of judicial economy and avoidance of piecemeal litigation require that the claims be adjudicated together); see also Harris v. Derwinski, 1 Vet. App. 180 (1991). As such, this issue must also be returned to the AOJ for further consideration. Accordingly, the case is REMANDED for the following action: 1. Return the record to the VA examiner who conducted the January 2017 VA examination for an addendum opinion regarding the severity of the Veteran's rheumatoid arthritis. If the January 2017 VA examiner is not available, the record should be provided to an appropriate examiner so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. The examiner should review the record and determine whether at any time since November 2010 to May 1, 2014, the Veteran's service-connected rheumatoid arthritis has caused: (i) anemia; (ii) weight loss; (iii) severe impairment of health; or (iv) severely incapacitating exacerbations. A detailed rationale for the examiner's findings should be provided. 2. After all the above development has been completed, readjudicate the claims on appeal. If an issue remains denied, the Veteran and his representative should be provided with a SSOC, and afforded a reasonable period of time within which to respond thereto. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. See 38 U.S.C. §§ 5109B, 7112 (2014). _________________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2014), 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).