Citation Nr: 1101494 Decision Date: 01/12/11 Archive Date: 01/20/11 DOCKET NO. 08-02 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a total rating for compensation purposes based on individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from May 1974 to September 1974 and May 1975 to February 1976. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision of the Atlanta, Georgia, Regional Office (RO) which, in pertinent part, denied both an increased disability evaluation for the Veteran's chronic lumbar strain and a total rating for compensation purposes based on individual unemployability. In March 2009, the Veteran submitted a Motion to Advance on the Docket. In March 2009, the Board granted the Veteran's motion. In April 2009, the Board denied an increased evaluation for the Veteran's chronic lumbar strain and remanded the issue of a total rating for compensation purposes based on individual unemployability to the RO for additional action. In June 2010, the Board remanded this claim for additional development. This appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. The Department of Veterans Affairs (VA) will notify the Veteran if further action is required on his part. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). REMAND Initially, the Board observes that service connection is in effect solely for chronic lumbar strain evaluated as 40 percent disabling. Therefore, the Veteran does not meet the schedular criteria for a total rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16(a) (2010). A February 2006 VA treatment record states that the Veteran's service-connected lumbar spine disorder "both prevents him from obtaining and keeping meaningful employment." The report of a September 2009 VA examination for compensation purposes states that: In regards to employability status: please refer to above descriptions. Due to his presentation of pain alone, he would not be employable, or his need for pain medications as stated above. In November 2009, the Huntington, West Virginia, Regional Office sent the Veteran's claim to Director of the VA Compensation and Pension Service (Director) for consideration of an "Extra-Schedular [total rating for compensation purposes based on individual unemployability] due to a service-connected disability." In a February 2010 decision, the Director considered the issue of "Entitlement to an Extra-Schedular Evaluation under 38 C.F.R. § 3.321(b)(1)." He determined that: There is no indication that the Veteran's service-connected arthritis of lumbar spine, in itself, would markedly interfere with the Veteran's ability to be gainfully employed. Entitlement to an extra-schedular evaluation is not warranted. In an August 2010 supplemental statement of the case (SSOC) issued to the Veteran and his accredited representative, the AMC cited 38 C.F.R. § 3.321(b)(1) and informed the Veteran that: A total rating may also be provided where the evidence demonstrates such an exceptional or unusual disability picture concerning the Veteran's service-connected disabilities with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. In addressing a similar factual scenario, the United States Court of Appeals for Veterans Claims (Court) clarified that: The Court notes that the effect of a service-connected disability appears to be measured differently for purposes of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) (extraschedular consideration warranted where there is, inter alia, marked interference with employment ) and for purposes of a TDIU claim under 38 C.F.R. § 4.16 (1993) (extraschedular consideration warranted where Veteran who is unemployable by reason of service-connected disabilities that do not meet certain percentage requirements is " unable to secure and follow a substantially gainful occupation by reason" of such service-connected disabilities) (emphasis added); see also 38 C.F.R. § 3.321(b)(2) (1993) (extraschedular consideration warranted in pension cases where veteran "is found to be unemployable") (emphasis added); cf. Moyer, 2 Vet.App. at 293-94 (discussing issue of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) separately from issue of TDIU claim). Kellar v. Brown, 6 Vet. App. 157, 162 (1994). The Director and the AMC appear to have melded together the extraschedular provisions in 38 C.F.R. § 4.16(b) (2010) with those in 38 C.F.R. § 3.321(b) (2010). These two regulations have different purposes and requirements. Thun v. Peake, 22 Vet. App. 111, 117 (2008); Stanton v. Brown, 5 Vet. App. 563, 564-70 (1993). The Veteran's entitlement to a total rating for compensation purposes based on individual unemployability under the provisions of 38 C.F.R. § 4.16(b) was not considered by the Director. Inasmuch as the Board sincerely regrets another remand of this matter, the Board cannot assign an extra-schedular evaluation under the provisions of 38 C.F.R. § 4.16(b) in the first instance. Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director for consideration of the Veteran's claim under the provisions of 38 C.F.R. § 4.16(b). If the Director determines that an extra-schedular evaluation is not warranted, the Board then has jurisdiction to decide the claim. Accordingly, the case is REMANDED for the following actions: 1. Submit the Veteran's claim of entitlement to a total rating for compensation purposes based on individual unemployability to the Under Secretary for Benefits or Director of Compensation and Pension Service for consideration under 38 C.F.R. § 4.16(b) (2010). 2. Then readjudicate the Veteran's entitlement to a total rating for compensation purposes based on individual unemployability. If the benefit sought on appeal remains denied, the Veteran and his accredited representative should be issued a SSOC which addresses all relevant actions taken on the claim, to include a summary of the evidence and applicable law and regulations considered, since the issuance of the last SSOC. The Veteran should be given the opportunity to respond to the SSOC. 3. Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested. The Veteran is free to submit additional evidence and argument while the case is in remand status. See Kutscherousky v. West, 12 Vet. App. 369 (1999). The Veteran's appeal must be afforded expeditious treatment by the RO. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103- 446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03. _________________________________________________ J. T. HUTCHESON Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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) (2010).