Citation Nr: 22012471
Decision Date: 03/04/22	Archive Date: 03/04/22

DOCKET NO. 17-29 933
DATE: March 4, 2022

REMANDED

A rating higher than 20 percent prior to October 21, 2021, and higher than 40 percent thereafter for polymyositis is remanded.

REASONS FOR REMAND

The Veteran served on active duty from September 1986 to October 1989.

A remand is required to have the RO issue a supplemental statement of the case (SSOC) that addresses all evidence received into the record since the issuance of the November 2021 SSOC. Here, after the issuance of a November 2021 SSOC, additional evidence was received into the record and is relevant to the claim on appeal. Specifically, a VA examination report to determine the severity of the Veteran's service-connected polymyositis disability dated January 2022. As the November 2021 SSOC, in part, denied increased ratings for the Veteran's polymyositis, this evidence is relevant and material to the current appeal. This examination report has not been considered by the RO with respect to the issue on appeal, and no waiver of initial RO consideration has been received.

Here, as the Veteran has not waived initial RO consideration of the above-cited VA examination report, a remand for issuance of an SSOC is required. Additionally, the Board is concerned that prior remand instructions have not had full compliance. Specifically, the Board has directed that examinations of any/all muscles and joints affected by the Veteran's polymyositis be conducted, as the Veteran has stated that he suffers from muscle and joint pain and weakness along with his neurological symptoms. Yet, the record does not contain any such examination. A Board remand confers a right on a claimant to compliance with the remand order. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

The matter is REMANDED for the following action:

1. The RO should review the record to include the January 2022 VA examination report and other pertinent evidence in the claims file that was not addressed in the November 2021 SSOC.

2. The RO should confirm that the Board's prior remand instructions, including the specific instructions contained in the Board's March 2019 and September 2021 Remands regarding VA examinations of all of the muscles and joints affected by the Veteran's service connected polymyositis has been conducted and completed as directed. 

3. Thereafter, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, issue an SSOC and provide the Veteran with an opportunity to respond. Then return the case to the Board, if otherwise in order.

 

JOHN Z. JONES

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Parrish

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.