Citation Nr: 21011812
Decision Date: 03/02/21	Archive Date: 03/02/21

DOCKET NO. 13-89 776A
DATE: March 2, 2021

ORDER

A disability rating in excess of 40 percent for polyarthralgia of unknown etiology is denied.

FINDING OF FACT

The 40 percent disability rating that is currently in effect is the maximum schedular rating for polyarthralgia.

CONCLUSION OF LAW

The criteria for a disability rating in excess of 40 percent for polyarthralgia of unknown etiology have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5099-5025.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from September 1988 to September 1992.

In a July 2018 decision, the Board dismissed the Veteran’s claim seeking a disability rating in excess of 40 percent for polyarthralgia as withdrawn.  The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court).  In a June 2020 decision, the Court vacated and remanded the Board’s dismissal of this claim, nothing that the parties had agreed that the Board erred in the July 2018 decision because it did not assess whether the Veteran fully understood the consequences of his withdrawal.  As a result, the Board will consider the merits of the Veteran’s claim seeking a disability rating in excess of 40 percent for polyarthralgia.

1. Entitlement to a disability rating in excess of 40 percent for polyarthralgia of unknown etiology

The Veteran has been assigned a 40 percent disability rating for his service-connected polyarthralgia, which is the maximum schedular rating for polyarthralgia.  38 C.F.R. § 4.71a, DC 5099-5025.  In fact, at the February 2018 Board hearing, the Veteran’s representative acknowledged that she and the Veteran knew that the Veteran was receiving the highest rating allowable by law for his service-connected polyarthralgia.  Therefore, the Board finds that a disability rating in excess of 40 percent for the Veteran’s service-connected polyarthralgia is not warranted.

Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  In this regard, the Board observes that the evidence, including the Veteran’s testimony at the February 2018 Board hearing and the February 2021 VA examination reflect that the Veteran has been gainfully employed as a plumber.  Therefore, a TDIU claim is not raised by the record. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).

 

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.

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. Crosnicker, Associate Counsel