Citation Nr: 1014831 Decision Date: 04/19/10 Archive Date: 04/30/10 DOCKET NO. 06-26 870 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating greater than 40 percent for a lumbar spine disability on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). 2. Entitlement to an initial disability rating greater than 20 percent for right lower extremity radiculopathy on an extra-schedular basis under 38 C.F.R. § 3.321(b)(1). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active military service from December 1955 to December 1959 and from November 1990 to June 1991. The Veteran also served in the National Guard. This matter comes to the Board of Veterans' Appeals (Board) on appeal from June 2005 and April 2006 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case previously reached the Board in April 2008. In an April 2008 decision, the Board denied a disability rating in excess of 40 percent for the Veteran's service-connected lumbar spine disorder and increased the disability rating for his service-connected right lower extremity radiculopathy to 20 percent. The Veteran appealed this decision to the U. S. Court of Appeals for Veterans Claims (Court). Pursuant to a September 2009 Memorandum Decision, the Court partially vacated and remanded the Board's decision. The Court held that the Board failed to consider referral of the increased rating claims for an extra-schedular evaluation under 38 C.F.R. § 3.321(b). Specifically, the Court instructed the Board to refer the increased rating claims to the Director of Compensation and Pension Service for an extra-schedular evaluation, if warranted by the evidence. Notably, the Court did not dispute the Board's determination as to the schedular ratings assigned for the increased rating claims. See Memorandum Decision at page 3. As such, the part of the Board decision that addressed the schedular ratings remains undisturbed. The case has now returned to the Board for appellate review. In the April 2008 Board decision, the Board remanded the TDIU claim to the RO for a VA examination, as well as a referral to the Director of Compensation and Pension Service for an extra-schedular evaluation pursuant to 38 C.F.R. § 4.16(b). In this vein, when the Veteran appealed the increased rating issues to the Court, the Court emphasized that it did not have jurisdiction of the TDIU claim since the Board had remanded that claim for further development, rather than denied it, such that that claim is not yet final. See Breeden v. Principi, 17 Vet. App. 475, 478-79 (2004); Hampton v. Gober, 10 Vet. App. 481, 483 (1997). It is still not clear whether the development for the TDIU claim was fully completed by the RO. To that end, the Board sees that the RO did secure an August 2009 VA examination for TDIU as requested, and also referred the TDIU claim for an extra- schedular evaluation pursuant to § 4.16(b) as requested. However, it is not clear whether the extra-schedular evaluation pursuant to § 4.16(b) has actually been completed. No such document is currently present in the claims folder. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND First, as to the appellant's claim for TDIU, as noted above, it is still not clear whether previous development requested by the Board in its April 2008 decision was completed by the RO. That is, an extra-schedular evaluation under § 4.16(b) by the Director of Compensation and Pension is not of record. A remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). Failure of the Board to insure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Id. The Court also recently clarified that only substantial compliance, and not strict compliance, with the terms of an opinion request are required. D'Aries v. Peake, 22 Vet. App. 97 (2008). The Court routinely vacates Board decisions based on this situation. This fact is especially pertinent in this case since the appeal has already been partially vacated and remanded by the Court. Therefore, in light of Stegall, supra, the TDIU issue is once again remanded to the RO to ensure compliance with the Board's previous April 2008 remand instructions. Second, the Court instructed the Board to refer the increased rating claims to the Director of Compensation and Pension Service for an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1), if warranted. In making this determination, the Court requested that the Board consider the three factors discussed in Thun v. Peake, 22 Vet. App. 111, 115 (2008). In the present case, the Board concludes that referral of the increased rating claims to the Director of Compensation and Pension Service for an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) is warranted. In this regard, there is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun, 22 Vet. App. at 115-116. First, the threshold factor for extra-schedular consideration is that there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. at 115. However, if not adequately contemplated by the rating criteria, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. at 116. See also 38 C.F.R. § 3.321(b)(1). If either of the factors of step two is found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. In the present case, the Veteran has credibly asserted that despite the combined 50 percent schedular rating for his lumbar spine and right lower extremity disabilities, the rating criteria in the rating schedule still do not reasonably describe the Veteran's disability level and symptomatology. Because of his service-connected disabilities, the Veteran is not able to lift, climb, or drive a vehicle long-term, bend, or stoop. See August 2009 VA examination. He has not been able to work since 1994. His problems appear to go beyond a lack of range of motion or pain. Therefore, initially, the Board acknowledges that some of the manifestations of his service-connected disability are not specifically addressed by the rating criteria. Id. at 115-116. In addition, the Board finds that the Veteran's exceptional disability picture exhibits other related factors such as marked interference with employment since 1994. Id. at 116. See also 38 C.F.R. § 3.321(b)(1). As such, a referral for an extra-schedular evaluation is warranted. The Board emphasizes entitlement to an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extra-schedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In this case, both regulations should be addressed on remand, since both have been reasonably raised by the evidence of record. The Court has held that the question of an extra-schedular rating is a component of a Veteran's claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996), citing Floyd v. Brown, 9 Vet. App. 88, 96 (1996) (the Board is obligated to consider the applicability of the extra- schedular rating regulation). The Board, however, cannot assign an extra-schedular evaluation in the first instance. See id. See also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director has determined that an extra-schedular evaluation is not warranted does the Board have jurisdiction to decide the claim on the merits. In fact, most recently, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C & P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009). See also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C & P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the ... Board."). In the present case, the Director of Compensation and Pension has not yet made this initial determination. In conclusion, the Board refers the Veteran's TDIU and increased rating claims to the Under Secretary for Benefits or Director of Compensation and Pension for an extra-schedular evaluation under both 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: 1. Follow the Board's previous instructions in the April 2008 remand regarding submission of the TDIU claim for an extra-schedular evaluation under 38 C.F.R. § 4.16(b). In addition, submit the increased rating claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extra-schedular evaluation under 38 C.F.R. § 3.321(b) as well. An extra-schedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular 2. ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96 (Aug. 16, 1996). Under 38 C.F.R. § 4.16(b), the severity of the Veteran's service-connected disabilities, as well as his employment history, educational and vocational attainment and all other factors having a bearing on his employability (or lack thereof) should be considered. 3. If the increased rating and TDIU claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to respond to it before returning the file to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). _________________________________________________ A. BRYANT 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) (2009).