Citation Nr: 0810027 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 99-25 172 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for bronchial asthma from July 1, 1990 to July 24, 1997. 2. Entitlement to an initial evaluation in excess of 60 percent for bronchial asthma from July 24, 1997. 3. Entitlement to a total rating based on individual unemployability (TDIU) prior to July 24, 1997. REPRESENTATION Appellant represented by: Sean A. Ravin, Attorney at Law ATTORNEY FOR THE BOARD A. A. Booher, Counsel INTRODUCTION The veteran served on active duty in the U.S. Air Force from June 1964 to June 1990. This matter was brought to the Board of Veterans' Appeals (Board) on appeal from a November 1990 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for asthmatic bronchitis and assigned a 10 percent evaluation, effective July 1, 1990. In a subsequent rating decision, the evaluation assigned for this disability was increased to 30 percent, effective July 1, 1990. Thereafter, in a December 1998 rating decision, the RO granted a 60 percent evaluation for the veteran's bronchial asthma, effective February 19, 1998. This matter was also brought to the Board on appeal from an October 1999 rating decision, which denied entitlement to an effective date prior to February 19, 1998, for the grant of a TDIU. In December 2000 and July 2003, the Board remanded the veteran's claims for readjudication in accordance with instructions contained therein. In June 2005, the Board issued a decision which will be discussed below in pertinent part as required. The decision both denied and granted certain benefits as discussed therein. The veteran took the decision on appeal to the U.S. Court of Appeals for Veterans Claims (Court). The Joint Motion asked that the 2005 Board decision be vacated and remanded in pertinent part. When the case previously before the Board, he was represented by The American Legion. Concurrent with and since his appeal to the Court, he has been represented by a private attorney. Based on the Joint Motion, in July 2007, the Court remanded the case on the issues shown on the front page of the present decision, for compliance with the instructions in the Joint Motion. The appeal is REMANDED to the VARO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant when further action is required. REMAND When, as in this case, the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). During the course of the current appeal, additional guidelines have recently been issued by the Court of Appeals for Veterans Claims with regard to increased ratings cases and mandatory notice in Vazquez-Flores v. Peake, No. 05-0355 (U.S. Vet. App. Jan. 30, 2008). In exceptional cases where schedular evaluations are found to be inadequate, the VARO may refer a claim to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities." 38 C.F.R. § 3.321(b)(1). "The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture 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." The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court has further held that the Board must address referral under 38 C.F.R. 3.321(b)(1) only where circumstances are presented which the Under Secretary or Director of the Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). See also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996). In the Board decision of June 2005, the following findings of fact were made and legal conclusions reached: FINDINGS OF FACT 1. The competent and probative medical evidence of record demonstrates that the veteran's bronchial asthma, from July 1, 1990, to July 23, 1997, was characterized by asthma attacks no more than once per month with only moderate dyspnea, and FEV-1 and FEV-1/FVC greater than 55 percent of predicted, and no more than intermittent steroid courses. 2. The competent and probative medical evidence of record demonstrates that the veteran's bronchial asthma, from July 24, 1997, has been characterized by FEV-1 and FEV-1/FVC greater than 40, with no episodes of respiratory failure, and no required daily use of high dose corticosteroids. 3. Pursuant to this decision, the schedular requirement for a TDIU, i.e., a combined 70 percent evaluation for multiple service- connected disabilities, was first met, as of July 24, 1997. 4. The veteran's current formal claim of entitlement to TDIU was received on April 15, 1998. 5. There is an approximate balance in the evidence as to whether, effective July 24, 1997, but no earlier, the veteran was precluded from securing or following a substantially gainful occupation, consistent with his education and work experience, solely as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 30 percent for bronchial asthma, from July 1, 1990, to July 23, 1997, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6602 (1996) (effective prior to Oct. 7, 1996), 4.97, Diagnostic Code 6602 (2004) (effective Oct. 7, 1996). 2. The criteria for an initial evaluation of 60 percent for bronchial asthma, from July 24, 1997, to February 18, 1998, are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6602 (1996) (effective prior to Oct. 7, 1996), 4.97, Diagnostic Code 6602 (2004) (effective Oct. 7, 1996). 3. The criteria for an initial evaluation of 100 percent for bronchial asthma, from February 19, 1998, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6602 (1996) (effective prior to Oct. 7, 1996), 4.97, Diagnostic Code 6602 (2004) (effective Oct. 7, 1996). 4. Giving the benefit of the doubt to the veteran, the regulatory criteria for establishing an effective date of July 24, 1997, for the assignment of a total rating based upon individual unemployability due to service- connected disabilities have been met. 38 U.S.C.A. §§ 5107(b), 5110(b)(2) (West 2002): 38 C.F.R. §§ 3.102, 3.155, 3.321, 3.340, 3.341, 3.400, 4.16, 4.19, 4.25 (2004). In the body of the Board's 2005 decision, considerable discussion was provided as to the presence versus the absence of a viable claim and/or clinical evidence (under old and new criteria) for an increase to include TDIU prior to July 1997. In the Joint Motion before the Court, the arguments tend to focus on the fact that extraschedular considerations have not been addressed in any of the pending issues. In accordance with the Joint Motion, the case is REMANDED for the following action: 1. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). Specifically, he should be asked to provide any further information he may have with regard to the impact his service-connected disabilities may have had on his employment or hospitalizations. 2. After completing the requested action, and any additional notification and/or development deemed warranted, the RO should readjudicate each claim by evaluating all evidence and pertinent regulations. The VARO should consider whether referral under 38 C.F.R. § 3.321(b)(1) is appropriate. The veteran should be given opportunity to present evidence and argument on this point. If the case is referred to the Chief Benefits Director or the Director, Compensation and Pension Service, the ultimate outcome should be communicated to the veteran. 3. If the benefits sought on appeal remain denied, the RO must furnish the veteran and his attorney a comprehensive SSOC and allow them a reasonable period of time to respond. The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issues currently on appeal, including the VCAA and any other legal precedent including the parameters of Fenderson, Hart and/or Vasquez-Flores, supra. The case should then be returned to the Board for further appellate review. The veteran need do nothing further until so notified. This claim 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. 2007). ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a final decision of the Board of Veterans' Appeals is appealable to the U.S. Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a final decision of the Board on the merits of the appeal. 38 C.F.R. § 20.1100(b) (2007).