Citation Nr: 0530955 Decision Date: 11/17/05 Archive Date: 11/30/05 DOCKET NO. 03-33 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE 1. Entitlement to an evaluation in excess of 50 percent for migraine headaches on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). 2. Entitlement to a total disability rating based on individual unemployability (TDIU or IU rating) prior to November 26, 2003. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Jessica J. Wills, Associate Counsel INTRODUCTION The veteran served on active duty from October 1995 to June 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. The Board observes that the veteran's appeal had originally included the issue of entitlement to a total disability rating based on individual unemployability due to service- connected disability (TDIU). During the pendency of the appeal, a rating decision dated in April 2004 granted TDIU effective from November 26, 2003. Therefore, the remaining issue on appeal is as stated on the cover page of this remand order, entitlement to a TDIU rating prior to November 26, 2003. In the September 2005 informal hearing presentation, the veteran's representative contended that the veteran's major depression should have been evaluated as 70 to 100 percent disabling. The Board notes that the claims file does not contain a notice of disagreement with the rating assigned for that disability by the RO in the April 2004 rating decision, and it is unclear as to whether the veteran intended, by means of the September 2005 statement, to file a claim for an increased evaluation for major depression. In any event, that issue is not currently before the Board because it has not been prepared for appellate review. Accordingly, the matter is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required on his part. REMAND Reason for Remand: After a reply is received from the Director, Compensation and Pension Service, in regard to an April 2005 Memorandum from the RO which involves the issues on appeal, the veteran should be asked to clarify whether he still wants a hearing before a Veterans Law Judge at the RO in St. Paul, Minnesota, and if so, one should be scheduled for him. The veteran appealed to the Board the September 2001 rating decision which denied a rating in excess of 50 percent for service-connected migraine headaches and which denied a TDIU rating. A TDIU rating "may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16(a). Under section 4.16(a) of the regulations, a certain percentage requirement must be met in order for a TDIU rating to be granted, namely, if there is only one service-connected disability, that disability must be rated at 60 percent or more; or, if there are two or more disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If the schedular ratings assigned for the service-connected disorders do not meet the percentage requirements under section 4.16(a) but the veteran is unemployable by reason of service-connected disabilities, the rating board may refer the case to the Director, Compensation and Pension Service, for extraschedular consideration. During the course of the appeal, increased ratings were granted for other service-connected disabilities bringing the combined rating to 70 percent by November 26, 2003, and a TDIU rating was granted as of that date under section 4.16(a). Accordingly, the issue now before the Board on appeal is entitlement to a TDIU rating prior to November 26, 2003. However, because the authority to assign an extraschedular TDIU rating under section 4.16(b) is vested by the regulation in a certain VA official, the Board may not grant such a rating, but the Board may review the RO's determination as to whether to refer such a rating to the appropriate official for consideration. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extra-schedular rating is required); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). In this case, the RO referred the matter to the Director, Compensation and Pension Service, in an April 2005 Memorandum but a reply is not yet of record. In addition, the 50 percent schedular rating assigned for migraine headaches is the highest rating provided by the VA Schedule for Rating Disabilities for that disorder. Therefore, a higher rating may only be granted on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) or, if the evidence showed the veteran to be unemployable based on his service-connected migraine headaches alone, an extraschedular TDIU rating could be awarded under the provisions of 38 C.F.R. § 4.16(b). However, as noted above, the Board does not have the authority to grant such a rating because the terms of the regulations themselves vest that authority in a particular VA official. Finally, the record reveals that the veteran requested a BVA hearing at a local VA office before a member of the Board in his September 2003 VA Form 9. Although he was provided the opportunity to testify before a Decision Review Officer at the RO in February 2004, the veteran has not been afforded a hearing before the Board. The failure to afford the veteran a hearing would amount to a denial of due process. 38 C.F.R. § 20.904(a)(3) (2005). Therefore, after it receives a reply to its April 2005 Memorandum, the RO should contact the veteran to determine whether he would still like to be scheduled for a hearing before the Board. Therefore, in order to give the veteran every consideration with respect to the present appeal and to ensure due process, it is the Board's opinion that further development of the case is necessary. Accordingly, the case is REMANDED for the following actions: 1. The RO should wait to receive a reply from the Director, Compensation and Pension Service, to its April 2005 Memorandum and then inform the veteran of the decision on his claims for extraschedular ratings for migraine headaches and for a total rating based on individual unemployability prior to November 26, 2003. 2. After it receives the reply and informs the veteran of the decision, the RO should contact the veteran and clarify whether he still wants a hearing before a Veterans Law Judge at the RO in St. Paul, Minnesota. If he does, the RO should schedule the hearing. If the veteran indicates that he no longer wants a hearing or fails to appear, that fact should be documented in the record. When the development requested has been completed, the case should be reviewed by the RO on the basis of additional evidence. If the benefits sought are not granted, the veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The purpose of this REMAND is to obtain additional development, and the Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The appellant has the right to submit additional evidence and/or argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until he is notified. _________________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2005).