Citation Nr: 21066731 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-66 392 DATE: November 2, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for right foot soft tissue tumor is remanded. Entitlement to an initial evaluation in excess of 20 percent for undiagnosed illness with muscle/body pains, to include fibromyalgia, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from September 1988 to December 1991 and from April 1997 to March 1999. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2015 and November 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. When evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, the Veteran has indicated that he is unable to work as a result of his service-connected disabilities. See July 2019 VA Form 9; November 2020 Hearing Transcript. As such, the Board finds that a claim for a TDIU has been raised as part and parcel to the increased rating claims. Therefore, the issue of entitlement to a TDIU is before the Board on appeal and is properly included in the list of issues before the Board. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to a disability rating in excess of 10 percent for right foot soft tissue tumor is remanded. See Argument in Section 2 2. Entitlement to an initial evaluation in excess of 20 percent for undiagnosed illness with muscle/body pains, to include fibromyalgia, is remanded. The record reflects that the Veteran was last afforded VA examinations for his service-connected right foot soft tissue tumor and undiagnosed illness with muscle/body pains in June 2015 and October 2017, respectively. During the November 2020 hearing, the Veteran testified that he experiences immense pain with his right foot when he puts pressure on it. He further indicated that the tumor on his right foot was bigger. As regards to his fibromyalgia, the Veteran testified that the entire left side of his body constantly ached and that he is overly exhausted. Furthermore, the left side of his body is sensitive to the touch. Thus, based on the Veteran's testimony, it appears that these service-connected disabilities have worsened in severity since his VA examinations. Therefore, the Board finds that a more contemporaneous examination of each service-connected disability is warranted in order to ensure that the record reflects the current severity of each disability. Furthermore, as regards to each service-connected disability, the Board finds that consideration of an extraschedular rating due to the severity and nature of the Veteran's symptoms is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). Here, the Veteran has testified that these service-connected disabilities impact his ordinary conditions of life, including his ability to work. Due to the pain associated with his right foot disability, he is unable to stand for extended periods of time he can stand for about five minutes. Also, he is unable to walk far. He walks on the sides of his feet due to the pain. Furthermore, he prefers to wear slippers since wearing shoes is painful. As for his fibromyalgia, the Veteran indicated that the entire left side of his body constantly aches, and that the pain is so bad that it gets to a point where it will put him to sleep. He indicated that he feels these symptoms all the time. As the Veteran argues that these symptoms are not contemplated by the schedular rating of each service-connected disability, the Board finds that remand is warranted for referral to the Director of Compensation Service for extraschedular consideration. Thus, in light of the above, a remand is required to afford the Veteran a contemporaneous examination for each service-connected disability. Furthermore, a remand is required to obtain an opinion from the Director of Compensation Service regarding each service-connected disability. Additionally, during the November 2020 hearing, the Veteran indicated that he is in receipt of Social Security Administration (SSA) disability benefits. A review of the record does not disclose an attempt by the RO to obtain any records from SSA. As such records may be potentially relevant to the claims on appeal at this time, a remand is necessary in order to obtain any available SSA records. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed Cir. 2010); see also Baker v. West, 11 Vet. App. 163, 169 (1998). 3. Entitlement to a TDIU is remanded. As previously indicated, the Board finds that entitlement to a TDIU has been raised by the record. Rice, 22 Vet. App. at 453-54. The Board further finds that the issue of the Veteran's entitlement to a TDIU is inextricably intertwined with the issues remanded herein. Accordingly, the issue of entitlement to a TDIU must be deferred pending adjudication of the aforementioned appeal. See Henderson v. West, 12 Vet. App. 11, 20 (1998) (matters are "inextricably intertwined" where action on one matter could have a "significant impact" on the other). Furthermore, the Veteran should be given the opportunity to submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. The Board finds that, on remand, obtaining a VA Form 21-8940 would be helpful in determining the Veteran's employment status throughout the relevant period, education, and service-connected limitations. On remand, the Agency of Original Jurisdiction (AOJ) should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, so as to afford him with an opportunity to provide a description of his employment history and educational background. 3. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's claims, to include SSA disability determinations and any medical records underlying these determinations. All reasonable attempts to obtain such records should be made and documented. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile. This should be documented in the claims file. The Veteran must be notified in accordance with 38 C.F.R. § 3.159(e). 4. After completing the above development, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected right foot soft tissue tumor disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the current severity of the Veteran's service-connected disability. The examiner is requested to comment on the severity of the Veteran's service-connected right foot soft tissue tumor disability throughout the rating period. The examiner should discuss the effect of the disability on his occupational functioning and daily activities. The VA examiner is asked to address whether the Veteran experiences any symptoms related to his service-connected right foot soft tissue tumor disability that are not contemplated by the rating criteria. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. Then, schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected undiagnosed illness with muscle/body pains disability (fibromyalgia). The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. If an examination cannot be scheduled at a location to which the Veteran can safely travel, or if health considerations make the scheduling of an in-person examination not possible, the AOJ should consider whether other virtual options, to include telehealth interviews or examinations are possible. If virtual alternatives are not feasible or possible, the AOJ should indicate as much, and medical opinions based on review of the Veteran's claims file should be obtained, in lieu of an in-person or virtual examination, addressing the current severity of the Veteran's service-connected disability. The examiner is requested to comment on the severity of the Veteran's service-connected undiagnosed illness with muscle/body pains disability (fibromyalgia). The examiner should discuss the effect of the disability on his occupational functioning and daily activities. The VA examiner is asked to address whether the Veteran experiences any symptoms related to his service-connected undiagnosed illness with muscle/body pains disability (fibromyalgia) that are not contemplated by the rating criteria. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 6. After the Veteran's VA examinations have been conducted, refer the claims for an increased rating for service-connected right foot soft tissue tumor and undiagnosed illness with muscle/body pains disability (fibromyalgia) to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). (Continued on next page) 7. After completing all indicated development, the Veteran's claims should be readjudicated, to include the issue of entitlement to a TDIU, based on the entirety of the evidence. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.