Citation Nr: 1123929 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 09-44 609 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for a left shoulder strain. 2. Entitlement to an initial compensable rating for partial amputation of the tuft of the right 4th finger. 3. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from February 2005 to February 2009. He received the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Buffalo, New York. In that decision, the RO granted service connection for a left shoulder strain and partial amputation of the tuft of the right 4th finger and assigned 10 percent and noncompensable disability ratings, respectively, both effective February 22, 2009. In his October 2009 substantive appeal (VA Form 9), the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. An informal hearing conference with a DRO was conducted in March 2010 and a report of that conference has been associated with the Veteran's claim folder. The Veteran withdrew his request for a formal DRO hearing at that time. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Since February 22, 2009, the Veteran's left shoulder strain has been manifested by flexion and abduction both to between 160 and 180 degrees and internal and external rotation both to 90 degrees with no additional functional impairment due to pain, flare ups, or other factors and no demonstrated ankylosis or humerus, clavicle, or scapula impairment. 2. Since February 22, 2009, the Veteran's partial amputation of the tuft of the right 4th finger has been manifested by mild median nerve neuritis and no demonstrated amputation at the proximal interphalangeal joint or proximal thereto or loss of more than one-half of the finger bone. CONCLUSIONS OF LAW 1. The criteria for an initial rating higher than 10 percent for a left shoulder strain have not been met at any time since February 22, 2009. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DCs) 5200-5203 (2010). 2. The criteria for an initial 10 percent rating for partial amputation of the tuft of the right 4th finger have been met since February 22, 2009. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Codes (DCs) 5155, 5227, 5230, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8515 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The appeal arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and pertinent service personnel records. The Veteran has not reported and the evidence does not reflect any post-service VA or private medical treatment. In addition, the Veteran was afforded VA examinations for a left shoulder strain and partial amputation of the tuft of the right 4th finger. There is no reported relevant evidence that remains outstanding, nor is there any indication of the need for additional examinations or opinions. Analysis Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Left Shoulder Strain The Veteran's left shoulder strain is currently rated under 38 C.F.R. § 4.71a, DC 5203 as impairment of the clavicle or scapula. Under DC 5203, a 10 percent rating is warranted for malunion of the clavicle or scapula of the minor extremity or nonunion of the clavicle or scapula of the minor extremity without loose movement. A 20 percent rating is warranted for nonunion of the clavicle or scapula of the minor extremity with loose movement or dislocation of the clavicle or scapula of the minor extremity. 38 C.F.R. § 4.71a, DC 5203. Under DC 5201, the following ratings apply to limitation of motion of the minor extremity: a 20 percent rating is warranted when arm motion is limited to shoulder level or to midway between the side and shoulder level; and a 30 percent rating is warranted when arm motion is limited to 25 degrees from the side. 38 C.F.R. § 4.71a, DC 5201. The normal range of motion of the shoulder is 180 degrees of forward elevation (flexion) and abduction (90 degrees is shoulder level), and 90 degrees of internal and external rotation. 38 C.F.R. § 4.71, Plate I (2010). Higher ratings are also provided under 38 C.F.R. § 4.71a, DCs 5200 and 5202 for ankylosis of the scapulohumeral articulation and impairment of the humerus. 38 C.F.R. § 4.71a, DCs 5200, 5202. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain, or flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. A March 2009 VA examination report reveals that the Veteran reported that he was right hand dominant, that he injured his left shoulder while playing football in service and that his disability had been stable since that time. He treated his shoulder symptoms with medication and ice. There was pain, stiffness, weakness, and decreased speed of joint motion, but no deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, locking, effusions, inflammation, or flare ups. Examination revealed left shoulder crepitus, but no evidence of arthritis, loss of a bone or part of a bone, or recurrent shoulder dislocations. There was objective evidence of pain with active motion of the left shoulder and ranges of shoulder motion were recorded as flexion and abduction both to 180 degrees and left internal and external rotation both to 90 degrees. There was also objective evidence of pain and additional limitations following three repetitions of ranges of motion of the left shoulder. Ranges of shoulder motion following repetitive motions were recorded as flexion and abduction both to 160 degrees and internal and external rotation both to 90 degrees. There was no joint ankylosis and X-rays of the acromioclavicular joint revealed no fracture or subluxation, normal bone mineralization, and essentially unremarkable glenohumeral joints. X-rays of the left shoulder revealed normal bone shape and articulation of the humeral head and otherwise unremarkable findings. A diagnosis of left shoulder acromioclavicular joint dislocation was provided. An August 2009 VA environmental examination report indicates that the Veteran reported a 1 year history of left shoulder pain. The pain was caused by any movement of the left shoulder, but subsided with rest. Examination revealed painful left shoulder motion, but no signs of any joint inflammation. The Veteran was diagnosed as having shoulder pain. A March 2010 VA examination report indicates that the Veteran reported that his left shoulder disability had been stable since his initial in-service injury and that he treated his symptoms with medication and ice. There was stiffness, weakness, decreased speed of joint motion, and tenderness, but no deformity, giving way, instability, incoordination, episodes of dislocation or subluxation, locking, or effusions. Flare ups occurred every night, lasted several minutes at a time, were moderate in severity, were precipitated by activity, were alleviated by position change, and caused decreased range of shoulder motion. There were no symptoms of arthritis and the Veteran did not use any assistive devices. Examination revealed no evidence of loss of a bone or part of a bone, recurrent shoulder dislocations, or inflammatory arthritis. There was no objective evidence of pain with active left shoulder motion and ranges of motion were recorded as flexion and abduction both to 180 degrees and internal and external rotation both to 90 degrees. There was no objective evidence of pain following repetitive motion and no additional limitations following three repetitions of ranges of motion. Furthermore, there was no joint ankylosis. A diagnosis of a left shoulder strain with associated left shoulder acromioclavicular joint dislocation was provided. The left shoulder disability did not cause any problems with usual activities of daily living, but the Veteran was unemployed and had problems with heavy lifting. The evidence reflects that the Veteran's service-connected left shoulder disability has been manifested by pain, weakness, stiffness, crepitus, tenderness, and limitation of shoulder motion. Ranges of shoulder motion were recorded as flexion and abduction both to 180 degrees and internal and external rotation both to 90 degrees during the March 2009 and March 2010 VA examinations. There was objective evidence of pain with motion during the March 2009 VA examination and ranges of motion were recorded as flexion and abduction both to 160 degrees following repetitive motion. During the March 2010 VA examination, there was no objective evidence of pain during ranges of motion and repetitive motions did not cause any pain or other limitations. Also, the Veteran reported that there was no incoordination during both the March 2009 and March 2010 VA examinations. Flare ups were reported during the March 2010 VA examination and the Veteran stated that they were precipitated by shoulder activity and caused decreased range of shoulder motion. He is competent to report symptoms of his left shoulder disability, such as flare ups and limitation of motion. However, his reports must be weighed against the objective evidence and their credibility must be assessed. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In light of the fact that the March 2010 VA examination report reflects that ranges of left shoulder motion were normal (flexion and abduction both to 180 degrees and internal and external rotation both to 90 degrees), there was no objective evidence of pain with active motion or following repetitive motion, and no additional limitations following three repetitions of ranges of motion, the Board concludes that the Veteran's reports of left shoulder flare ups with associated limitations of motion following shoulder use are not credible. Therefore, although the examiner who conducted the March 2010 VA examination did not opine as to the degree of additional range-of-motion loss due to flare ups of left shoulder symptoms, the examination is nonetheless adequate. Even considering the Veteran's reports of left shoulder pain and other factors, the Veteran's left shoulder symptoms more closely approximate the noncompensable level than the criteria for a 20 percent rating under DC 5201, as the evidence does not reflect that the Veteran's pain is so disabling to actually or effectively result in limitation of arm motion to shoulder level or midway between the side and shoulder level, which are the requirements for the next higher percent rating under DC 5201. 38 C.F.R. §§ 4.7, 4.71a, DC 5201. Although there has been no X-ray evidence of clavicle or scapula impairment, an initial 10 percent rating was apparently assigned under DC 5203 on the basis of malunion or nonunion of the clavicle or scapula. Nevertheless, an initial rating higher than 10 percent for the Veteran's left shoulder disability is not warranted at any time during the appeal period. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.40, 4.45, 4.59, 4.71a, DCs, 5201, 5203. The Veteran is also not entitled to a higher rating under DCs 5200 or 5202 at any time throughout the appeal period, as there is no evidence of ankylosis or impairment of the humerus. Although the Veteran was diagnosed as having a left shoulder acromioclavicular joint dislocation during the March 2009 and March 2010 VA examinations, the Veteran specifically denied episodes of dislocation during these examinations, there was no objective evidence of recurrent shoulder dislocations during the March 2009 VA examination, and X-rays of the acromioclavicular joint and left shoulder revealed no fracture or subluxation, normal bone mineralization, essentially unremarkable glenohumeral joints, normal bone shape and articulation of the humeral head and otherwise unremarkable findings. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Colayong v. West, 12 Vet App 524 (1999) (citing Dorland's Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The absence of ankylosis was specifically noted during the March 2009 and March 2010 VA examinations and since the Veteran retains the ability to move his shoulder, a rating for ankylosis is not warranted. Partial Amputation of the Right 4th Finger The partial amputation of the right 4th finger is currently rated under 38 C.F.R. § 4.118, DC 7804 (2010) as an unstable or painful scar. However, as explained below, there is no scarring associated with the service-connected finger disability. Rather, the primary symptoms associated with the disability are pain and numbness of the ring finger. Therefore, the Veteran's service-connected finger disability is more properly rated under 38 C.F.R. § 4.124a, DC 8515 as paralysis of the median nerve. Under DC 8515, paralysis of the major extremity is rated as follows: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for severe incomplete paralysis; and a 60 percent rating is warranted for complete paralysis, with the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the place of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, inability to make a fist, and the index and middle finger remain extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb at the right angle to the palm; weakened flexion of the wrist; and pain with trophic disturbances. 38 C.F.R. § 4.124a, DC 8515. The rating schedule provides guidance for rating neurologic disabilities. With regard to rating neurologic disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Under DC 5155, amputation of the ring finger of the major extremity is rated as follows: a 10 percent rating is warranted for amputation of the ring finger at the proximal interphalangeal joint or proximal thereto without metacarpal resection; and a 20 percent rating is warranted for amputation of the ring finger with metacarpal resection (more than one-half the bone lost). 38 C.F.R. § 4.71a, DC 5155. A March 2009 VA examination report contains the Veteran report that he smashed his right ring finger between two pieces of metal in service and was treated with stitches. Part of the bone of the right ring finger was removed and the disability had been stable since the in-service injury. There was no decrease in strength or dexterity of the hand, but there was pain when the finger was cold or when the Veteran gripped an object tightly and there was numbness in the tip of the finger. Flare ups occurred when the finger was used or banged and during cold weather, they lasted several seconds, and were moderate in severity. There was no additional limitation of motion or other functional impairment during flare ups. Examination of the right hand revealed no impaired strength or dexterity, no angulation, ankylosis, or amputation of one or more digits of the hand, no thumb disorder, no gap between any finger and the proximal transverse crease of the hand on maximal flexion of the finger, and no abnormality or scarring, but there was numbness on the tip of the right ring finger. Neurological examination revealed otherwise normal motor and sensory findings. There was no joint ankylosis, but X-rays revealed partial amputation of the tuft of the 4th finger. The margins of the amputation were relatively intact and there was no recent fracture or intrinsic osseous abnormality. The Veteran had been unemployed since his discharge from service. He was diagnosed as having a partial amputation of the right ring finger with an associated laceration, but no scarring. The disability had no effects on his usual activities of daily living. A March 2010 VA examination report reveals that the Veteran reported pain associated with his right ring finger disability when it was cold or when he gripped an object tightly. There was also loss of sensation in the tip of the finger. The disability had been stable since its onset and the Veteran was not receiving any treatment. There was decreased right hand strength, but no decreased dexterity. Flare ups were caused by cold temperatures and heavy lifting, were alleviated by rest, occurred weekly and lasted several minutes at a time, and were moderate in severity. There was no reported additional limitation of motion or other functional impairments during flare ups. Examination revealed that the right ring finger was 1/2 inch shorter than the left, but that the finger was otherwise normal. Surgery had not altered the usefulness of the remaining digits, there was no ankylosis of any digits, there was no decreased strength for pushing, pulling, or twisting, and no decreased dexterity for twisting, probing, writing, touching, or expression. X-rays revealed partial amputation of the tuft of the 4th finger. The margins of the amputation were relatively intact and there was no recent fracture or intrinsic osseous abnormality. The Veteran was diagnosed as having a partial amputation of the tuft of the right ring finger, with no associated scarring. The disability did not cause any problems with usual activities of daily living, but had the potential to cause occupational difficulties due to problems with heavy lifting. The evidence reflects that the Veteran's service-connected right ring finger disability has been manifested by finger pain and numbness since the effective date of service connection. Given that the Veteran's reported neurological impairment is wholly sensory and at most mild, that neurological findings have been otherwise normal, and as the Veteran is competent to report symptoms of his neurological impairment, resolving reasonable doubt in his favor warrants an initial 10 percent rating for incomplete paralysis of the median nerve under DC 8515. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.124a, DC 8515; See Jandreau, 492 F.3d at 1376-77; Buchanan, 451 F.3d at 1336. The Veteran is not entitled to a higher rating under DC 5155 for amputation of the ring finger as the evidence does not reflect that the amputation was at the proximal interphalangeal joint or proximal thereto or that more than one-half of the finger bone was lost. Rather, X-rays have revealed only partial amputation of the tuft of the 4th finger (i.e. tip of the ring finger). Therefore, the symptoms of the Veteran's finger disability more closely approximate the noncompensable level than the criteria for a 10 percent rating under DC 5155. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5155. Although the ranges of motion of the Veteran's ring finger were not recorded during the March 2009 and March 2010 VA examination, he is not entitled to a higher rating based on limitation of finger motion as any limitation of motion of the ring finger warrants only a 0 percent rating. 38 C.F.R. § 4.71a, DC 5230. Furthermore, the Veteran is not entitled to a higher rating for finger ankylosis as the absence of ankylosis was specifically noted during the March 2009 and March 2010 VA examinations and any ankylosis of the ring finger (unfavorable or favorable) warrants a 0 percent rating. 38 C.F.R. § 4.71a, DC 5227. Extraschedular Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if 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." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, 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. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). There has been no allegation or evidence of exceptional factors in this appeal. The symptoms of the Veteran's disabilities are left shoulder pain, stiffness, weakness, crepitus, tenderness, and limitation of motion and right ring finger pain and numbness. These symptoms are contemplated by the rating criteria. Thus, referral for consideration of an extraschedular evaluation is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial rating higher than 10 percent for a left shoulder strain is denied. Entitlement to an initial 10 percent rating for partial amputation of the tuft of the right 4th finger is granted, effective February 22, 2009. REMAND The Court has held that a TDIU is an element of all claims for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2010) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has reportedly been unemployed since his discharge from service. Thus, given the evidence of a medical disability, the claim for the highest rating possible, and evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2010); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The Court has held that in the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination that includes an opinion on what effect the appellant's service-connected disability has on her ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The evidence does not contain an opinion as to whether the Veteran's service-connected disabilities prevent him from obtaining and keeping employment for which his education and occupational experience would otherwise qualify him. The Veteran does not currently meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) (2010). VA policy is to grant a TDIU in all cases where service connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of Compensation and Pension (C&P) for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine whether his service-connected disabilities prevent him from obtaining and keeping employment for which his education and occupational experience would otherwise qualify him. All indicated test and studies should be conducted. The claims folder, including this remand, must be sent to the examiner for review; consideration of such should be reflected in the completed examination report or in an addendum. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (adjustment disorder, left shoulder strain, acne, partial amputation of the tuft of the right 4th finger, and residuals of a left leg laceration) would, collectively, be sufficient to preclude him from obtaining or retaining gainful employment for which his education and occupational experience would otherwise qualify him. The examiner must provide a rationale for each opinion. If the examiner is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 2. If there is evidence that the Veteran's service-connected disabilities preclude gainful employment and he does not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a), the agency of original jurisdiction (AOJ) should refer the case to VA's Director of C&P for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). 3. The AOJ should review the examination report to ensure that it contains the information and opinions requested in this remand and is otherwise complete. 4. If any benefit on appeal remains denied, the AOJ should issue a supplemental statement of the case. Thereafter, the case should be returned to the Board, if in order. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2010). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs