Citation Nr: 21007755
Decision Date: 02/10/21	Archive Date: 02/10/21

DOCKET NO. 10-26 111
DATE: February 10, 2021

REMANDED

Entitlement to an extraschedular rating for myofascial pain syndrome (MFPS) is remanded.

REASONS FOR REMAND

The Veteran served on active duty for training (ACDUTRA) from February 1982 to May 1982, with additional service in the Army Reserve.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision by a Department of Veterans Affairs Regional Office (RO).

In March 2019, the Veteran testified at a Board videoconference hearing before the undersigned.  A copy of the transcript of that hearing has been associated with the claims file.

As noted in the prior October 2019 Board decision, in a February 2013 Board decision, the Veteran’s increased rating claim for MFPS was found intertwined with a service connection claim for MS.  Accordingly, action on the increased rating claim was deferred until a clarifying VA examination was obtained.  Thereafter, a February 2015 Board decision denied service connection for MS, denied a rating in excess of 40 percent disabling for MFPS, and remanded a raised claim for extraschedular consideration for referral to VA Directory of Compensation Service.

A subsequent March 2016 Board decision denied extraschedular consideration for MFPS, however, that decision was vacated in a later August 2016 Board decision in order to remand the claim so that a requested Board hearing could be scheduled.  As noted above, the requested Board hearing was held in March 2019.

In October 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain updated VA medical records and a VA examination.  The Board notes that the requested VA examination occurred in January 2020, and updated VA medical records have been obtained and associated with the claims file.  Accordingly, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development.  Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Entitlement to an extraschedular rating for myofascial pain syndrome (MFPS) is remanded.

The Board observes that additional evidence has been added to the claims file following the last adjudication by the Agency of Original Jurisdiction (AOJ) in the June 2020 supplemental statement of the case (SSOC), including updated VA medical records.  In an December 2020 letter, the Board notified the Veteran and her representative of the additional evidence and advised them that they could submit a waiver of AOJ consideration of that evidence in the first instance.  The Board additionally notified the Veteran and her representative that if they did not respond within 45 days of the letter, that it would be assumed they did not wish the Board to decide the appeal at this time and the matters would be remanded to the AOJ for review.  

A review of the claims file shows that neither the Veteran nor her representative have responded to the December 2020 letter.  Accordingly, given that the Veteran has not waived her right to have new evidence reviewed in the first instance, a remand is necessary.  38 C.F.R. § 19.37(b).

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The matter is REMANDED for the following action:

The AOJ must readjudicate the issue on appeal based on the current evidence of record.  If the benefits sought remain denied, a supplemental statement of the case must be provided to the Veteran and her representative.

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	C. Lamb, 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.