Veteranclaims’s Blog

December 5, 2012

Single Judge Application, Murray v. Shinseki, 24 Vet.App. 420, 423(2011); Separate Disability Ratings for Separate and Distinct Symptoms

Excerpt from decision below:
“In short, “[i]f the appellant’s symptoms are ‘distinct and separate,’ then
the appellant is entitled to separate disability ratings for the various conditions.” Murray v. Shinseki, 24 Vet.App. 420, 423(2011) (quoting Esteban, 6 Vet.App. at 262).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-3509
ROBIN L. KERNS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

BARTLEY,Judge: U.S. ArmyveteranRobinL.Kerns, whois self-represented,
appeals from
an August 15, 2011, Board of Veterans’ Appeals (Board) decision that
denied entitlement to service
connection for (1) a right knee disorder; (2) memory loss and impaired
concentration, to include as
a chronic disabilityresultingfrom an undiagnosed illness; and (3) an
adjustment disorder, to include
as a chronic disability resulting from an undiagnosed illness.1
Record (R.) at 3-24. This appeal is
timely and the Court has jurisdiction to review the Board decision
pursuant to 38 U.S.C. §§ 7252(a)
and 7266(a). Single-judge disposition is appropriate. Frankel v. Derwinski,
1 Vet.App. 23, 25-26
(1990). For the reasons that follow, the Court will vacate the portion of
the August 2011 Board
decision addressing Ms. Kerns’s claim for service connection for memory
loss and impaired
concentration and will remand that claim for readjudication consistent
with this decision. The Court
The Board also remanded theissuesof entitlement to(1)
serviceconnectionforshortnessofbreathandasthma,
to include as a chronic disability resulting from an undiagnosed illness; (
2) service connection for a menstrual disorder,
to include as a chronic disability resulting from an undiagnosed illness; (
3) an effective date prior to February 24, 2010,
for a 40% evaluation for fibromyalgia; and (4) an effective date prior to
March 7, 2007, for a total rating based on
individual unemployability (TDIU). Because a remand is not a final
decision of the Board subject to judicial review,
the Court does not have jurisdiction to consider those issues at this time.
See Howard v. Gober, 220 F.3d 1341, 1344
(Fed. Cir. 2000); Breeden v. Principi, 17 Vet.App. 475, 478 (2004); 38 C.F.
R. § 20.1100(b).
1

will affirm the Board’s decision as to her claims for service connection
for right knee and adjustment
disorders.
I. FACTS
Ms. Kerns served on active duty for training from June 1990 to October
1990 and on active
duty from February 1991 to October 1991, including service in Southwest
Asia in support of
Operations Desert Shield and Desert Storm. R. at 4, 581. Following service,
she was awarded
service connection for a disabilitymanifesting in muscle, joint, and upper
back pain with fatigue and
a sleep disorder. R. at 1282-89.
In August 2005, Ms. Kerns filed a claim for service connection for, inter
alia, a right knee
disorder, memoryloss and impaired concentration, and an adjustment
disorder. R. at 991-1019. An
October 2005 VA progress note indicates that Ms. Kerns had a diagnosis ”
most consistent with an
Adjustment Disorder related to her medical conditions.” R. at 981.
Subsequent VA medical records
also contain diagnoses of an adjustment disorder due to or related to
physical pain. R. at 961, 963.
However, a January 2006 VA medical examination concluded that Ms. Kerns ”
does not meet [the]
diagnostic criteriaforanypsychiatricdiagnosis”andexplained
thatherreportedsymptoms were”not
the result of any psychiatric disorder” and “may be attributable to her
medication” for treating her
fibromyalgia with fatigue. R. at 717. The following month, a VA physician
stated that Ms. Kerns’s
knee pain was “part of her fibromyalgia and chronic pain with possible
superimposed arthritis.” R.
at 312.
In the meantime, a VA regional office (RO) sent Ms. Kerns a letter
notifying her of the
evidence she needed to submit to substantiate her August 2005 claims for
direct and secondary
service connection. See R. at 943 (outlining the evidence needed “to
support [a] claim for
compensation based upon an additional disability that was caused or
aggravated by a service-
connected disability”), 944 (outlining the evidence needed “to support [a]
claim for service
connection”).
In January 2007, the RO denied entitlement to service connection for a
right knee disorder,
memorylossandimpairedconcentration,andanadjustment disorderbecauseit
foundthatMs. Kerns
did not have a current knee or psychiatric disability that was compensable
for VA purposes. R. at
2

652-59. She filed a timely Notice of Disagreement (NOD) with that
decision and subsequently
perfected her appeal to the Board. R. at 198-99, 604-09.
In May 2007, Ms. Kerns underwent a VA medical examination, at which time
she
complained of muscle pain, joint pain and stiffness, difficulty sleeping,
abdominal cramping, and
irregular menses. R. at 224-25. The examiner opined that “[a]ll complaints
except sleep apnea
belong to a diagnosis of fibromyalgia.” R. at 225. In June 2007, the RO
issued a decision
recharacterizing Ms. Kerns’s service-connected disability manifesting in
muscle, joint, and upper
back pain with fatigue and a sleep disorder as fibromyalgia with fatigue.
R. at 200-11. The RO also
acknowledged that Ms. Kerns raised the issue of entitlement to TDIU and
deferred a decision on that
issue pendingthe receipt of a completed unemployabilityquestionnaire. R.
at 204. Laterthat month,
the RO issued a decision denying entitlement to TDIU. R. at 39.2
In October 2007, the RO denied
a claim for an increased evaluation for fibromyalgia with fatigue. Id. It
appears that Ms. Kerns
timely appealed that denial, as well as the RO’s previous denial of
entitlement to TDIU, to the Board.
Id.
In October 2009, the Board issued a decision remanding the issues of
entitlement to service
connection for a right knee disorder, memory loss and impaired
concentration, and an adjustment
disorder; an increased evaluation for fibromyalgia with fatigue; and TDIU
for further development.
R. at 36-53. Pursuant to that remand order, Ms. Kerns underwent a VA
psychiatric examination in
February2010. R. at 446-52. Afterreviewingthe claims file, recording Ms.
Kerns’s complaints, and
performing a mental status examination and other psychological tests, the
examiner concluded that
Ms. Kerns did “not meet the [Diagnostic and Statistical Manual of Mental
Disorders (DSM-IV)]
criteria for the diagnosis of an adjustment disorder or anyother
psychiatric disorder.” R. at 451. The
examiner opined that Ms. Kerns reported “difficulty with her memory and
concentration, which, by
definition, is part of her already service-connected fibromyalgia.” R. at
452. The examiner also
The Court notes that the record of proceedings does not contain a copy of
that decision and several other
documents related to the development and adjudication of Ms. Kerns’s
entitlement to TDIU and an increased evaluation
for fibromyalgia with fatigue. The Secretary also did not provide that
information in his brief. Therefore, the procedural
history for those issues is largely derived from the summary of those
issues included in the October 2009 Board decision,
cited above.
2
3

explained that there were “not any psychiatric symptoms . . . that are
separate from [Ms. Kerns’s]
already service-connected and diagnosed fibromyalgia.” R. at 452.
It appearsthatMs. Kerns alsounderwentaVAjointsexamination in February2010,
although
that examination report is not contained in the record of proceedings. See
R. at 385 (RO summary
of the February 2010 VA joints examination). According to the RO, that
examination revealed an
increasein Ms. Kerns’s fibromyalgiasymptoms, includingconstant,
refractoryjoint painandfatigue.
Id.
Based on that examination, the RO issued a November 2010 Supplemental
Statement of the
Case(SSOC) increasingthedisabilityevaluation
forfibromyalgiawithfatigueto40%,themaximum
schedular evaluation for that disability, and awarding entitlement to TDIU.
R. at 393-417. In
February 2011, the RO issued a decision review officer decision
implementing those awards. R. at
358-63, 382-90. The cover letter accompanying that decision instructed Ms.
Kerns to submit a
written NOD if she disagreed with that decision and to refer to the
enclosed VA Form 4107, Your
Rights to Appeal Our Decision, for more information on her right to appeal.
R. at 362-63. In April
2011, Ms. Kerns filed an NOD, stating that she wished to appeal the
effective dates assigned for the
increased evaluation for fibromyalgia with fatigue and the award of TDIU.
R. at 341-43.
In August 2011, the Board issued the decision currentlyon appeal, which
denied entitlement
to service connection for a right knee disorder, memory loss and impaired
concentration, and an
adjustment disorderandremandedtheissues
ofentitlementtoearliereffectivedatesforfibromyalgia
with fatigue and TDIU. Record (R.) at 3-24. The Board determined that Ms.
Kerns’s claimed right
knee pain and psychiatric problems were symptoms of her service-connected
fibromyalgia with
fatigue, such that separatelycompensating those symptoms would violate the
regulatoryprohibition
against pyramiding. R. at 11-19. The Board also stated that “[s]he did not
argue [in her April 2011
NOD] that the 40[%] evaluation for fibromyalgia was inadequate” and “deem[
ed] that portion of her
appeal to be satisfied.” R. at 21. This appeal followed.
4

II. ANALYSIS
A. Claims for Service Connection Currently on Appeal
As an initial matter, Ms. Kerns argues that VA did not inform her of the
information and
evidence necessary to establish secondary service connection for her
claimed right knee disorder,
memory loss and impaired concentration, and adjustment disorder.
Appellant’s Brief (Br.) at 2.
However, as the Secretarycorrectlynotes, the record contains a January2006
pre-adjudication letter
from the RO that set forth the elements necessary to support a “claim for
compensation based upon
an additional disability that was caused or aggravated by a service-
connected disability.” R. at 943.
Ms. Kerns has not explained how this notice was deficient or how she was
otherwise prejudiced by
it. See 38 U.S.C. § 7261(b)(2) (requiring the Court to “take due account
of the rule of prejudicial
error”); Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (explaining that ”
the burden of showing that
an error is harmful normally falls upon the party attacking the agency’s
determination”). Therefore,
her argument must fail.
Ms. Kerns next argues that the Board failed to consider whether her right
knee disorder,
memory loss and impaired concentration, and adjustment disorder may be
service connected
secondary to her fibromyalgia with fatigue. See Appellant’s Br. at 1-3.
She also challenges the
Board’s finding that her claimed conditions are symptoms of her service-
connected fibromyalgia,
rather than separate disabilities related to it. See id. The Secretary
disputes her contentions and
asserts that the Board’s findings are plausible based on the record and
supported by an adequate
statement of reasons or bases. See Secretary’s Br. at 7-9. The Court will
address these arguments
separately with respect to each of Ms. Kerns’s claimed disabilities.
1. Applicable Law
“Except as otherwise provided in [the rating] schedule, the disabilities
arising from a single
disease entity . . . are to be rated separately as are all other disabling
conditions, if any.” 38 C.F.R.
§ 4.25(b) (2012). However, “[t]he evaluation of the same disability under
various diagnoses,” a practice called pyramiding, “is to be avoided.” 38 C.F.R. § 4.14 (2012).
The rationale for the prohibition on pyramiding is that “the rating schedule may not be employed as a vehicle for compensating a claimant twice (or more) for the same symptomatology; such a result would overcompensate the claimant for the actual impairment” suffered. Brady v. Brown, 4 Vet.App. 203,
5

206 (1993). When determining whether separate evaluations are warranted, “[t]he critical element is that none of the symptomatology for any . . . conditions is duplicative of or overlapping with the symptomatology of the other . . . conditions.” Esteban v. Brown, 6 Vet.App. 259, 262 (1994). In short, “[i]f the appellant’s symptoms are ‘distinct and separate,’ then the appellant is entitled to separate disability ratings for the various conditions.” Murray v. Shinseki, 24 Vet.App. 420, 423 (2011) (quoting Esteban, 6 Vet.App. at 262).
The Board’s attribution of certain symptoms to certain disabilities is a
finding of fact that the Court reviews under the “clearly erroneous” standard of review. 38U.S.C. §7261(a)(4);see Murray, 24 Vet.App. at 423. “A factual finding ‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)).
In rendering its decision, the Board is required to provide a written
statement of reasons or
bases for its “findings and conclusions[] on all material issues of fact
and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to
enablea claimant to understand
the precise basis for the Board’s decision and to facilitate review in
this Court. Gilbert v. Derwinski,
1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must
analyze the credibility
and probative value of the evidence, account for the evidence that it
finds to be persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir.
1996) (table).
2. Right Knee Disorder
Contrary to Ms. Kerns’s argument, the Board expressly addressed whether
she was entitled
to service connection for a right knee disorder secondaryto her service-
connected fibromyalgia with
fatigue, but determined that her right knee symptoms did not represent a
separate disability from her
fibromyalgia with fatigue. R. at 11-14. Specifically, the Board explained
that “the majority of the
Veteran’s doctors have either found the knee to be normal, or like the
December 2005/February2006
and February 2010 doctors[,] have specifically attributed this pain to her
fibromyalgia[,] which is
a disability for which service connection has already been established.” R.
at 13.
6

To the extent that any right knee symptoms are attributable to
fibromyalgia, the Board
correctlyconcluded that those symptoms are alreadyaccounted for and
compensated byMs. Kerns’s
40% evaluation for fibromyalgia with fatigue, which is based on, inter
alia, “widespread
musculoskeletal pain and tender points.” 38 C.F.R. § 4.71a, Diagnostic
Code (DC) 5025 (2012).
A note to that DC states that “widespread pain” includes “pain in both the
left and right sides of the
body, that is both above and below the waist, and that affects both the
axial skeleton . . . and the
extremities.” Id. (emphasis added). Thus, as the Board found, separately
compensating Ms. Kerns
for right knee pain that has been attributed by her doctors to her service-
connected fibromyalgia
would constitute pyramiding because that pain is not distinct and separate
from her fibromyalgia
symptoms, for which she is already being compensated. See Brady and
Esteban, both supra;
38 C.F.R. § 4.14. The Court, therefore, is not persuaded that the Board
committed clear error in that
regard. See Previous HitMurrayNext Document, 24 Vet.App. at 423.
The Board also acknowledged that the record contains two diagnoses of
right knee disorders
separate from fibromyalgia–a March 1996 diagnosis of patellofemoral
syndrome and a February
2010 diagnosis of minimal degenerative changes of the knee. R. at 13-14.
The Board, however,
found that they were not related to Ms. Kerns’s service. R. at 14. The
Board explained that Ms.
Kerns’s diagnosis of patellofemoral syndrome was made “more than four and
a half years after
discharge from service,” “neither the examiner nor the Veteran attributed
this syndrome to active
service,” “this diagnosis has not been repeated,” and it “has not been
made since service connection
for fibromyalgia was established.” R. at 13. The Board also stated that
there was “no evidence of
degenerative changes during service,” the diagnosis of degenerative
changes of the right knee “was
made many years after the end of the one[-]year presumptive period” for
service connection for
arthritis, “every X-ray study dated prior to February 2010” was negative
for arthritis, “[t]here is no
medical opinion that relates the current degenerative changes to any
injury or event in active service
or to any service[-]connected disability,” and “the Veteran herself does
not relate the degenerative
changes to any specific trauma in service.” R. at 13-14.
In light of the foregoing statements, and absent evidence of a
relationship to service, the
Court does not discern any clear error in the Board’s finding that Ms.
Kerns’s diagnosed
patellofemoral syndrome and degenerative changes of the right knee were
not subject to service
7

connection. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir.
2004) (reiterating that a
nexus between the claimed in-service disease or injury and the current
disability is a necessary
element of service connection); Russo v. Brown, 9 Vet.App. 46, 50 (1996) (
explaining that the Court
reviews the Board’s determination regarding entitlement to service
connection under the “clearly
erroneous” standard of review).
3. Adjustment Disorder
The Board also determined that Ms. Kerns was not entitled to service
connection for an
adjustment disorder on a primary or secondary basis. R. at 17.
Significantly, the Board found that
a preponderance of the evidence was against a finding that Ms. Kerns had a
current psychiatric
disability separate from the psychiatric symptoms of her fibromyalgia with
fatigue. R. at 17. In
support of that finding, the Board pointed to various VA medical
examinations that were all negative
for a psychiatric disability. Id. The Board also acknowledged that the
record contains clinical
assessments and one diagnosis of an adjustment disorder, as well as
notations of depression, but
found that “each of the examiners who ha[s] noted an adjustment disorder [
or] depression . . . has
also attributed this to the fibromyalgia, the chronic fatigue, or both.” R.
at 18. The Board then
emphasized that “none of these examiners [has] opined that the Veteran has
a psychiatric disability
that is a separate entity from the fibromyalgia.” Id.
A review of the record confirms that finding, and Ms. Kerns’s 40%
evaluation takes into
account various psychiatric symptoms, such that compensating her
separately for those symptoms
would constitute pyramiding. See 38 C.F.R. §§ 4.14 (prohibiting
pyramiding), 4.71a, DC 5025
(listing fatigue, sleep disturbances, headaches, depression, and anxiety
as symptoms of
fibromyalgia). Thus, because Ms. Kerns’s psychiatric symptoms have all
been attributed to her
service-connected fibromyalgia with fatigue, the Court concludes that the
Board did not err in
denying her secondary service connection for an adjustment disorder. See
Brady and Esteban, both
supra.
Moreover, absent any separately diagnosed psychiatric disability, Ms.
Kerns is not entitled
to service connection for that claimed condition on a direct basis. See
Brammer v. Derwinski,
3 Vet.App. 223, 225 (1992) (“Congress specifically limit[ed] entitlement
for service-connected
disease or injury to cases where such incidents have resulted in a
disability. In the absence of proof
8

of present disability there can be no valid claim.” (citation omitted));
see also Shedden, 381 F.3d at
1166-67 (outlining the elements of service connection). Therefore, the
Board also discerns no clear
error in the Board’s denial of her claim for entitlement to service
connection for an adjustment
disorder on a direct basis. See Russo, 9 Vet.App. at 50.
4. Memory Loss and Impaired Concentration
a. Reasons or Bases
For reasons that remain unclear, the Board combined its analysis of Ms.
Kerns’s claim for
serviceconnection formemorylossandimpairedconcentrationwith
herclaimforserviceconnection
for an adjustment disorder. R. at 14-19. As explained above, the Board
found that all of Ms. Kerns’s
reported psychiatric symptoms, which the Board stated included memory loss
and concentration
problems, were attributable to her service-connected fibromyalgia with
fatigue. R. at 17-18. The
Board then concluded that the 40% schedular evaluation for fibromyalgia
with fatigue adequately
compensated Ms. Kerns for her memory loss and impaired concentration, such
that any additional
compensation for those symptoms would constitute pyramiding in violation
of § 4.14. R. at 18.
Although the Board found that “the rating criteria for the Veteran’s
fibromyalgia with fatigue
take into consideration the symptoms that have been identified,” DC 5025
does not list
neuropsychological symptoms, such as memory loss and impaired
concentration, among its
descriptive symptoms. Id.; see 38 C.F.R. § 4.71a, DC 5025. Moreover,
contrary to the Board’s
finding, VA classifies memory loss as a neuropsychological symptom, not a
psychiatric symptom.
See Compensation for Certain Diagnosed Illnesses, 60 Fed. Reg. 6660, 6601 (
Feb. 3, 1995)
(explaining that, “consistent with current VA rating procedures,” “memory
loss is included within
the category ‘neuropsychological signs or symptoms'”).
Thus, absent any further explanation from the Board, it is unclear why the
Board accepted
the February2010 VA examiner’s finding that Ms. Kerns’s memory loss and
impaired concentration
were part of her fibromyalgia and how the Board arrived at its conclusion
that she was being
compensated for those symptoms under her schedular evaluation for
fibromyalgia. See Gilbert,
1 Vet.App. at 57. The Court therefore concludes that the Board’s statement
of reasons or bases for
theportion ofits decisionaddressingentitlementto serviceconnection
formemorylossandimpaired
concentration was inadequate.
9

b. Extraschedular Evaluation
The Court further notes that, although Ms. Kerns is currently in receipt
of the maximum
schedularevaluationforherfibromyalgia,
shemayneverthelessreceiveanextraschedularevaluation
for a disability picture not captured by the schedular criteria. See Thun
v. Peake, 22 Vet.App. 111,
115 (2008) (explaining that referral for extraschedular consideration is
warranted when, inter alia,
“the schedular evaluation does not contemplate the claimant’s level of
disability and
symptomatology”);38C.F.R.§3.321(b)(providingforextraschedularevaluation
in “theexceptional
case where the schedular evaluations are found to be inadequate”). The
Board, however, did not
analyze whether she was entitled to referral for extraschedular
consideration. See id. (“When either
a claimant or the evidence of record suggests that a schedular rating may
be inadequate, the Board
must specificallyadjudicatethe issue of whetherreferral for an
extraschedularratingis warranted.”).
That deficiency rendered the Board’s statement of reasons or bases for its
decision on this claim
inadequate. See 38 U.S.C. § 7104(a) (requiring the Board to consider and
discuss in its decision all
“applicable” provisions of law and regulation); Gilbert, 1 Vet.App. at 57.
The Court therefore
concludes that vacatur and remand are warranted. See Tucker v. West, 11
Vet.App. 369, 374 (1998)
(“WheretheBoardhasincorrectlyappliedthelaw,failedto provide
anadequatestatementofreasons
or bases for its determinations, or where the record is otherwise
inadequate, a remand is the
appropriate remedy.”).
Ms. Kerns is free to submit additional argument and evidence as to her
claim for memory
loss and impaired concentration on remand in accordance with Kutscherousky
v. West, 12 Vet.App.
369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App.
529, 534 (2002). The
Court reminds the Board that “[a] remand is meant to entail a critical
examination of the justification
for [the Board’s] decision,” Fletcher v. Derwinski, 1 Vet.App. 394, 397 (
1991), and must be
performed in an expeditious manner in accordance with 38 U.S.C. § 7112.
B. Other Claims Not Currently on Appeal
Ms. Kerns alsoasserts thatshe”
didnotreceivenotificationregardingassignmentofdisability
rating and effective dates [for fibromyalgia with fatigue] until after
initial adjudication of the claim.”
Appellant’s Br. at 3. It appears that she is arguing that the Board’s
determination that she did not
10

appeal the 40% evaluation assigned for that service-connected
disabilitywas clearlyerroneous. The
Court disagrees.
The record reflects that the RO sent Ms. Kerns a letter in February 2011
informing her that
she had been awarded a 40% evaluation for fibromyalgia with fatigue and
providing her with
instructions on how to appeal that determination, should she disagree with
it. R. at 362-63. That
letter also expressly referred to the enclosed VA Form 4107, which
outlines the specific steps for
disagreeing with a VA decision and perfecting an appeal to the Board. Id.
It is unclear, however,
why the Board sent Ms. Kerns a letter requesting that she file an NOD
given that she had previously
filed one with respect to the RO’s October 2007 denial of her claim for an
increased evaluation for
fibromyalgia: that claim remained in appellate status even after the RO
issued the November 2010
SSOC awarding her a 40% evaluation for that condition and the February
2011 decision review
officer decision implementing that award. See AB v. Brown, 6 Vet.App. 35,
38 (1993) (holding that
“once a claim is in ‘appellate status’ by virtue of a previously filed NOD,
the claimant may not file
an additional NOD which could confer jurisdiction on this Court as to that
claim”). In other words,
had the Board required Ms. Kerns to file a second NOD and Substantive
Appeal to obtain appellate
review of the award of the increased evaluation for fibromyalgia with
fatigue, it would have
committed error. See id. However, the Board did not do so here.
Instead, the Board addressed Ms. Kerns’s claim for an increased evaluation
for fibromyalgia
with fatigue and (1) remanded the issue of entitlement to an earlier
effective date for the 40%
evaluation for that condition; and (2) determined that her appeal of the
schedular evaluation for
fibromyalgiawassatisfiedbecauseshehadalreadybeenawardedthemaximum
schedularevaluation
available under the applicable DC. R. at 19. Because the Board was correct
that DC 5025 does not
provide for a schedular evaluation for fibromyalgia greater than 40%, the
Court discerns no error in
the Board’s treatment of the schedular evaluation portion of her
fibromyalgia claim. See AB,
6 Vet.App. at 38 (“[O]n a claim for an original or an increased rating,
the claimant will generally be
presumed to be seekingthe maximum benefit allowed bylaw and regulation,
and it follows that such
a claim remains in controversy where less than the maximum available
benefit is awarded.”).
Ms. Kerns finally argues that VA has not yet issued an SSOC regarding the
issues remanded
by the Board. See Appellant’s Br. at 3. Those issues, however, are not
before the Court at this time
11

because a remand is not a final Board decision that the Court has
jurisdiction to review. See
Howard, 220 F.3d at 1344; Breeden, 17 Vet.App. at 478; 38 C.F.R. § 20.
1100(b). To the extent that
Ms. Kerns believes that VA’s delay in issuing an SSOC amounts to an
arbitrary refusal to act, her
proper recourse is to file with the Court a petition for extraordinary
relief in the nature of a writ of
mandamus to attempt to compel that action. See Costanza v. West, 12 Vet.
App.133, 134 (1999) (per
curiam order).
III. CONCLUSION
Upon consideration of the foregoing, the portion of the August 15, 2011,
Board decision
addressing Ms. Kerns’s claim for service connection for memory loss and
impaired concentration is
VACATED and the claim is REMANDED for readjudication consistent with this
decision. The
portions of the Board decision addressing her claims for service
connection for right knee and
adjustment disorders are AFFIRMED.
DATED: November 7, 2012
Copies to:
Robin L. Kerns
VA General Counsel (027)
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