Citation Nr: 1808653 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 10-04 107 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for generalized joint pain, muscle aches, and numbness to include as due to undiagnosed illness. 2. Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), to include depression and mental disorder not otherwise specified. 3. Entitlement to an effective date earlier than June 19, 2015 for the award of service connection for an acquired psychiatric disorder. 4. Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder. 5. Entitlement to an initial disability rating in excess of 10 percent for fibromyalgia, claimed as muscle and joint pain due to an undiagnosed illness. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Smith, Counsel INTRODUCTION The Veteran served on active duty from September 1987 to August 1991 in the United States Army. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In March 2012 and June 2014, the Board adjudicated a number of claims and remanded the above-captioned service connection claims for further development. In the later decision, the Board, in pertinent part, remanded the issue of service connection for generalized joint pain, muscle aches, and numbness, and an acquired psychiatric disorder not otherwise specified. In a November 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for fibromyalgia, also claimed as a muscle and joint pain. In a January 2017 rating decision, service connection for an acquired psychiatric disorder associated with fibromyalgia was granted. Thus, although the AOJ issued a supplemental statement of the case in January 2017 addressing the grant of service connection for both issues, the Board finds that this was unnecessary and procedurally incorrect. The Board finds that both issues that were the subject of the Board's most recent remand have been resolved as explained further below. In a May 2017 brief from Disabled American Veterans (DAV), liberally construed as a notice of disagreement (NOD) with the effective date assigned for the award of service connection for the acquired psychiatric disorder, the Veteran also seeks an earlier effective date for the award of service connection for fibromyalgia. Disagreement with the effective date for the award of service connection for fibromyalgia was not expressed within one year of the November 2015 rating decision granting service connection. The May 2017 claim is barred by Rudd v. Nicholson, 20 Vet. App. 296 (2006), and the Board will not include this matter with those being remanded pursuant to Manlincon, 12 Vet. App. at 238. This matter is referred to the AOJ for any appropriate action. The Board recognizes that in May 2017, a private attorney submitted an Attorney-Client Fee Contract. However, the most current VA Form 21-22, dated from March 20, 2017, is in favor of DAV. If the Veteran wishes to change his representative in the future, he may do so by filing an updated VA Form 21-22 or 21-22a. In a June 2015 VA Form 21-526EZ, the Veteran filed a claim for service connection for an elbow disorder and a bilateral shoulder disorder. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). The issues of an earlier effective date for an acquired psychiatric disorder, and higher ratings for the acquired psychiatric disorder and fibromyalgia, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. A November 2015 rating decision granted service connection for fibromyalgia, claimed as muscle and joint pain due to an undiagnosed illness. 2. A January 2017 rating decision granted service connection for an acquired psychiatric disorder. CONCLUSIONS OF LAW 1. As the benefit sought on appeal has been granted in full, there remains no question of law or fact involving the claim of service connection for generalized joint pain, muscle aches, and numbness, to include as due to an undiagnosed illness, and the appeal is dismissed. 38 U.S.C.A. §7105 (d)(5) (West 2014). 2. As the benefit sought on appeal has been granted in full, there remains no question of law or fact involving the claim of service connection for an acquired psychiatric disorder, and the appeal is dismissed. 38 U.S.C.A. §7105 (d)(5) (West 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board is charged with making final decisions on all questions in a matter which, under 38 U.S.C.A. §511(a), is subject to decision by the Secretary. 38 U.S.C.A. §7104. One of the principal functions of the Board is to make determinations of appellate jurisdiction. 38 C.F.R. §19.4. If the Board determines that it does not have jurisdiction over a case, the case may be dismissed. 38 U.S.C.A. §7105 ; 38 C.F.R. §20.101(d). In December 2009, the Veteran perfected an appeal to the Board with respect to the denial of his claims for entitlement to service connection for generalized joint pain, muscle aches, and numbness, to include as due to an undiagnosed illness, and an acquired psychiatric disorder. In March 2012 and June 2014, the Board remanded these claims for further development. In November 2015, the RO granted service connection for fibromyalgia, claimed as muscle and joint pain due to an undiagnosed illness. In January 2017, the RO granted service connection for an acquired psychiatric disorder. The Veteran was notified of the awards in correspondence from the RO dated in December 2015 and February 2017, respectively. As addressed in the Introduction section above and the Remand section below, the Veteran has expressed disagreement with aspects of these awards, but there has been no dispute pertaining to the bases of service connection. In other words, there is no indication in the record that service connection for the disabilities sought has not been awarded. While the RO confusingly went on to issue a January 2017 supplemental statement of the case (SSOC), the SSOC clearly indicates that service connection for an acquired psychiatric disorder and fibromyalgia, claimed as muscle and joint pain due to an undiagnosed illness, has been granted. Hence, there is no longer any case or controversy pending before the Board as contemplated by 38 U.S.C.A. §§ 7104 , 7105, and 38 C.F.R. § 19.4 for these service-connection claims. In the absence of any remaining, justiciable question, the appeals must be dismissed. ORDER The appeal with respect to the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, other than PTSD, to include depression and mental disorder not otherwise specified, is dismissed. The appeal with respect to the Veteran's claim for entitlement to service connection for generalized joint pain, muscle aches, and numbness, to include as due to an undiagnosed illness, is dismissed. REMAND Service connection for an acquired psychiatric disorder was granted in a January 2017 rating decision, and a 30 percent rating was assigned, effective June 19, 2015. In February 2017 and April 2017 correspondence, the Veteran expressed his disagreement with the rating assigned. In a May 2017 brief from his representative, the Veteran expressed his disagreement with the effective date of service connection. Liberally construing these documents in the Veteran's favor, the Board finds these constitute a NOD with both the rating and effective date. As the AOJ did not issue a SOC on the claims, they must be remanded for this development. 38 C.F.R. §19.9(c) (2016); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Service connection for fibromyalgia, claimed as muscle and joint pain due to an undiagnosed illness, was granted in a November 2015 rating decision, and a 10 percent rating was assigned. In October 2016, the Veteran expressed his disagreement with the rating assigned to the disability. Liberally construing this document in the Veteran's favor, the Board finds it constitutes a NOD with the rating. As the AOJ did not issue a SOC on the claim, it too must be remanded for this development. Id. As the underlying claims for service connection for these disabilities was filed well before March 24, 2015, the Board does not find that VA's amendments requiring that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary apply. Accordingly, these claims are REMANDED for the following action: Issue the Veteran a SOC on the following claims: (1) entitlement to an effective date earlier than June 19, 2015 for the award of service connection for an acquired psychiatric disorder; (2) entitlement to an initial disability rating in excess of 30 percent for the acquired psychiatric disorder; and (3) entitlement to an initial disability rating in excess of 10 percent for fibromyalgia, claimed as muscle and joint pain due to an undiagnosed illness. The appellant 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 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.A. §§ 5109B, 7112 (West 2014). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs