Citation Nr: 21022327
Decision Date: 04/15/21	Archive Date: 04/15/21

DOCKET NO. 17-22 111A
DATE: April 15, 2021

REMANDED

Entitlement to service connection for chronic pain is remanded.

Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

CORRECTIVE ORDER

Pursuant to 38 U.S.C. § 7103 (c), the Board may correct obvious error on its own initiative. Under such circumstances, the decision will be reversed or amended, and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105 (a).

Regrettably, the Board must correct obvious error made in a December 2020 Board remand to reflect the following: 

1. Service connection for chronic pain

Remand directive one (1) should read: 

“1. Obtain a VA addendum opinion by an appropriate clinician to determine the nature and etiology of any chronic pain, to include fibromyalgia. The clinician should review the virtual file, including a copy of this Remand, and address the following:

Whether it is at least as likely as not (50 percent or greater probability) that any diagnosed disorder of chronic pain, to include fibromyalgia, is due to service. 

In responding, the clinician should consider and address lay evidence. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. The absence of evidence of treatment for a claimed condition in the Veteran’s service treatment records cannot, standing alone, serve as a basis for a negative opinion. A rationale for all opinions is to be provided.”

2. Entitlement to a TDIU prior to March 14, 2019

The remand text should read: 

“Entitlement for TDIU prior to March 14, 2019 must be remanded for the issuance of a supplemental statement of the case (SSOC) pursuant to Manlincon v. West, 12 Vet. App. 238, 239-41 (1999).  While the RO granted entitlement to a TDIU effective March 14, 2019 in an August 2019 rating decision, entitlement to a TDIU prior to March 14, 2019 was not included in an SSOC prior to the appeal being returned to the Board.  Specifically, SSOCs were issued in April 2019 and August 2019 and did not include the issue of entitlement to a TDIU.  Therefore, remand for RO adjudication of the claim in the form of an SSOC prior to appellate adjudication is required.”

Remand directive two (2) should read: 

2. After all development has been completed, the AOJ should readjudicate the issues of entitlement to service connection for chronic pain and for entitlement to a TDIU.  If the benefits sought are not granted, the AOJ should furnish the Appellant with a supplemental statement of the case addressing both claims, and should give her a reasonable opportunity to respond before returning the record to the Board for further review.” 

 

K. Parakkal

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	M. R. Woodarek

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.