Citation Nr: 22017287 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-15 300A DATE: March 24, 2022 REMANDED Entitlement to an initial rating in excess of 40 percent for systemic lupus erythematosus (SLE), prior to March 18, 2014, is remanded. Entitlement to an initial rating in excess of 60 percent for SLE from March 18, 2014, is remanded. Entitlement to a finding of individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from April 2007 to September 2007 and from June 2009 to May 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2020 decision, the Board assigned an initial 40 percent rating for SLE prior to March 18, 2014, and continued the initial 60 percent rating for SLE from March 18, 2014. The Board also denied entitlement to TDIU. The Veteran appealed the August 2020 Board decision to the U.S. Court of Appeals for Veterans Claims (Court). In July 2021, the Court granted the parties' joint motion for partial remand (JMPR). The JMPR acknowledged the Board's assignment of an initial 40 percent rating for SLE prior to March 18, 2014, and that the Board's favorable finding would remain undisturbed. The Board's decision to deny an initial rating in excess of 40 percent for SLE prior to March 18, 2014, a rating in excess of 60 percent from March 18, 2014, and entitlement to TDIU, was vacated and the matters have been returned to the Board for review. With respect to the issue of entitlement to an initial rating in excess of 60 percent for SLE from March 18, 2014, the JMPR found that the Board erred in its decision by relying on an inadequate VA examination. The parties explained that the September 2019 VA examiner determined that the Veteran's SLE did not result in fatigue despite the earlier reports of fatigue in the record. The parties found that a new medical opinion was required, to include reconciling the prior findings of fatigue with the findings made in the September 2019 VA examination. Accordingly, remand is required for a new examination and opinion. Concerning the portion of the appeal period prior to March 18, 2014, the Board finds that a retrospective medical opinion is required. The evidence of record prior to March 18, 2014, shows the Veteran's statements concerning her reported exacerbations of SLE, to include pain logs assigning numerical values to the severity of her symptoms between September 1, 2013, and October 13, 2013. The March 2014 VA examiner relied, in part, on the Veteran's pain logs to find that the Veteran had exacerbations of lupus lasting a week or more, 2 or 3 times per year to warrant assignment of a higher 60 percent rating. An effective date of March 18, 2014, the date of the VA examination, has been assigned for the initial 60 percent rating for SLE. However, it is unclear as to whether a 60 percent rating may be assigned prior to March 18, 2014, and if the evidence reflects exacerbations of SLE prior to the date of the Veteran's pain logs. An opinion is required to determine whether the Veteran had exacerbations of SLE lasting a week or more, 2 or 3 times per year; or acute lupus with frequent exacerbations producing severe impairment of health, prior to March 18, 2014, and if possible, when these exacerbations began. In addition, the JMPR found, without conceding error, that the missing DRO hearing transcript from November 2013 must be associated with the claims file. It was noted that the April 2014 Statement of the Case indicated that the RO was awaiting transcription of the hearing held on November 22, 2013, but that the hearing transcript was not in the claims file. Given the notations in the record concerning the transcription of testimony and the JMPR, the Board finds that remand is required to make efforts to obtain the transcript. Finally, the issue of entitlement to TDIU is inextricably intertwined with the remanded initial rating claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). In addition, given the evidence indicates that the Veteran's SLE impacts her ability to work, referral of the case to the Director of Compensation Service for extraschedular consideration is warranted. The matters are REMANDED for the following action: 1. Make and document efforts to obtain a copy of the November 22, 2013, DRO hearing transcript. If a transcript is not available, notify the Veteran accordingly. 2. Schedule the Veteran for a new VA medical examination with a suitably qualified examiner concerning the nature and severity of her SLE. The claims file must be made available for review. The examiner is asked to address the following: (a.) Describe the current manifestations and symptoms of the Veteran's SLE. In doing so, reconcile the September 2019 VA examination finding that the Veteran did not have fatigue with the prior evidence of record, to include the Veteran's own statements, concerning the presence of fatigue. (b.) Concerning the portion of the appeal period prior to March 18, 2014, the examiner is asked to address whether the Veteran had exacerbations of SLE lasting a week or more, 2 or 3 times per year; or acute SLE with frequent exacerbations with severe impairment of health, and if possible, to identify the date of when these exacerbations began. In doing so, the examiner must address the Veteran's statements concerning exacerbations of SLE, the pain logs documenting her symptoms between September 1, 2013, and October 13, 2013, the submitted photographs, and the statements from S.C., a nurse practitioner. Rationale must be provided for any opinion reached. 3. Readjudicate the matters on appeal. If the, refer the case to the Director of Compensation Service for extraschedular consideration. 4. Following completion of the above, readjudicate the matters on appeal, to include consideration of TDIU and the need for referral to the Director of the Compensation and Pension Service if the Veteran's service-connected disability does not meet the percentage requirements in 38 C.F.R. § 4.16(a). If any benefit sought remains denied, issue a Supplemental Statement of the Case and return the matters to the Board for review. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Seay, 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.