Citation Nr: 1306695	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  11-34 246	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to an increased evaluation (rating) in excess of 20 percent for degenerative joint disease of the right shoulder (major).

2.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

R. Casadei, Associate Counsel



INTRODUCTION

The Veteran, who is the appellant in this case, had active service from January 1969 to July 1970.

This case comes to the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Nashville, Tennessee, which denied an increased rating in excess of 20 percent for degenerative joint disease of the right shoulder. 

Subsequent to the issuance of the December 2011 Statement of the Case, the Veteran submitted additional statements in October 2012, for which a waiver of initial RO consideration was provided.

Further, the Veteran requested a Board hearing in a December 2011 substantive appeal (VA Form 9), and was scheduled to appear for a hearing on June 6, 2012.  In a June 2012 statement from the Veteran's representative, it was noted that the Veteran was unable to attend the scheduled hearing, and that he wished to have the Board consider his appeal on the evidence of record.  Accordingly, the request for a Board hearing is considered withdrawn, and there are no other outstanding hearing requests of record.  38 C.F.R. § 20.702(e) (2012).

The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) stated that a claim for a TDIU is part and parcel of an increased rating when such a claim is raised by a veteran or is otherwise reasonably raised by the record.  In an October 2012 statement, the Veteran raised the issue of unemployability. Specifically, the Veteran contends that he had to retire from his job as a tool manufacturer because of pain and limitation of motion associated with his right shoulder disability.  In light of the Court's holding in Rice, the Board has considered the TDIU claim as part of his pending increased rating claim and has accordingly listed the raised TDIU claim as an issue.

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.  For the entire rating period, the Veteran's right shoulder disability has not been manifested by frequent dislocations of the humerus with guarding of all arm movements; fibrous union, nonunion, or loss of head of the humerus; ankylosis; or clavicle or scapula impairment. 

2.  For the entire rating period, degenerative joint disease of the right shoulder has been manifested by painful arm motion limited to 90 degrees (shoulder level) of flexion and abduction.  

3.  For the entire rating period, the Veteran's degenerative joint disease of the right shoulder, in consideration of pain and functional loss, does not more nearly approximate limitation of motion to midway between side and shoulder level. 


CONCLUSION OF LAW

For the entire rating period, the criteria for an increased rating in excess of 20 percent for right shoulder degenerative joint disease disability have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5201, 5202, 5203 (2012). 







REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide.  VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

In this case, a VCAA notice letter sent in December 2009 substantially satisfied the provisions of 38 U.S.C.A. § 5103(a).  In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information required by Vazquez-Flores.
With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence.  Specifically, the information and evidence that has been associated with the claims file includes service treatment records, VA treatment records, VA examination, and the Veteran's statements.  In December 2009, the RO provided the Veteran with a VA examination to assist in determining the extent of his right shoulder disability.  In order to obtain clarification as to the limitation of shoulder motion after repetition, an addendum was provided in March 2010.  As the VA examination report and addendum were written after an interview with the Veteran and contained specific findings indicating the nature and functional limitations of the Veteran's disability, the VA examination and addendum are adequate for rating purposes, and there is no duty to provide an additional examination or medical opinion for this claim.  Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes).  

Further, the Veteran has not made the Board aware of any additional evidence that needs to be obtained prior to appellate review.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Therefore, the Board finds that there is no reason to believe that any possible outstanding records would contain information relating to the Veteran's claim.  

In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration.  Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 

Disability Rating Laws and Regulations

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities.  The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R.  § 4.3 (2012). 

Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a veteran's service-connected disability.  38 C.F.R. § 4.14 (2012).  However, it is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; the critical element in permitting the assignment of several evaluations under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition.  
See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Gabrielson v. Brown, 7 Vet. App. 36, 39-40   (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).  Competency of evidence differs from weight and credibility.  Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

Increased Rating For a Right Shoulder Disability 

The Veteran contends that his right shoulder disability has worsened and that a higher rating in excess of 20 percent is warranted.  In considering whether a higher disability rating is warranted, the Board has carefully considered the Veteran and his representative's statements asserting that his disability is of such a severity so as to warrant a higher evaluation.  See Veteran's statements dated December 2009, June 2010, July 2010, October 2012, and the representative's statement dated August 2012.  

In this case, the Veteran's right shoulder disability is rated as 20 percent disabling under Diagnostic Codes 5010-5202.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2012).  Diagnostic Code 5010 pertains to traumatic arthritis.  Diagnostic Code 5202 pertains to other impairment of the humerus.  Arthritis is rated based upon limitation of motion of affected parts.  As 

The provisions of 38 C.F.R. § 4.71a expressly provide for the application of different rating criteria depending upon whether a veteran's minor (non-dominant) or major (dominant) side is being evaluated.  See 38 C.F.R. § 4.69 (2012). The Veteran in this case is right-hand dominant; therefore, his right shoulder disability affects his major, dominant side.

Under Diagnostic Code 5202, a 20 percent evaluation for the minor arm may be granted for four different conditions: (1) malunion of the humerus with moderate deformity; (2) malunion of the humerus with marked deformity; (3) recurrent dislocations of the scapulohumeral joint with infrequent episodes and guarding of movement only at shoulder level; and (4) recurrent dislocations of the scapulo-humeral joint with frequent episodes and guarding of all arm movements.  A 40 percent rating is warranted for the minor extremity when there is fibrous union of the humerus, a 50 percent rating is warranted when there is nonunion (false flail joint) of the humerus and a 70 percent rating is warranted when there is loss of head (flail shoulder) of the humerus.  38 C.F.R. § 4.71a, Diagnostic Code 5202.  

Also applicable in this case is Diagnostic Code 5201, which refers to limitation of motion of the arm.  In this regard, for a major (dominant) joint, a 40 percent rating is assigned when motion is limited to 25 degrees from the side; a 30 percent rating is assigned for the minor joint.  See 38 C.F.R. § 4.71a. 

Diagnostic Code 5203 provides that malunion of the clavicle or scapula may be assigned a 10 percent rating, or may be rated based on impairment of function of the contiguous joint.  Nonunion of the clavicle or scapula without loose movement warrants a 10 percent evaluation.  Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent rating.  In cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved.

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  38 C.F.R. § 4.45; DeLuca, 8 Vet. App. 202.

Normal ranges of motion of the shoulder are flexion (forward elevation) from 0 degrees to 180 degrees, abduction from 0 degrees to 180 degrees, external rotation from 0 degrees to 90 degrees, and internal rotation from 0 degrees to 90 degrees.                    38 C.F.R. § 4.71, Plate I.

Here, during a VA examination in December 2009 (supplemented by a March 2010 addendum), the examiner obtained a history from Veteran and the evidence of record was reviewed.  Upon examination, the Veteran had forward flexion of the right shoulder of 90 degrees, abduction of 90 degrees, internal rotation to 45 degrees, and external rotation to 45 degrees.  Objective evidence of pain following repetitions of motion was found.  As specified in the March 2010 VA addendum, only flexion decreased from 120 degrees to 90 degrees after repetition.  The December 2009 VA examiner noted that episodes of dislocation occurred "several times a year but less than monthly."  The examiner stated that the Veteran's shoulder disability decreased manual dexterity, caused problems with lifting, carrying and reaching, and decreased strength.  X-rays revealed a diagnosis of severe degenerative joint disease of the right shoulder interfering with range of motion. 

VA physical therapy treatment records dated March 2009 and November 2009 report the Veteran's complaints of shoulder pain, especially while working and during repetitive motion.  In this regard, the Veteran contends that he retired from working at a tool manufacturing company because he was unable to perform his duties due to his shoulder disability.  See Veteran's statement dated October 2012.

In a VA physical therapy treatment record dated November 2009, forward flexion of both shoulders was 135/140 degrees, abduction of 90/95 degrees, internal rotation to 40 degrees, and external rotation to 20/45 degrees.  

At the outset, the Board notes that multiple examinations of the Veteran's shoulders do not demonstrate ankylosis of scapulohumeral articulation (Diagnostic Code 5200).  Further, there is no objective evidence of fibrous union of the humerus, nonunion of the humerus (false flail joint), or loss of head of the humerus (flail shoulder)(Diagnostic Code 5202).  Accordingly, although he is currently rated in part under Diagnostic Code 5202, because there is no clinical evidence that he suffers from any of the above conditions, the Board finds that the criteria pertaining to those disabilities cannot result in higher ratings.  38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202.

Additionally, because 20 percent is the maximum rating available for impairment of the clavicle or scapula under Diagnostic Code 5203, a higher rating under Diagnostic Code 5203 is not possible.

Further, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition.  See Esteban, 6 Vet. App. at 262.  In this case, the Veteran's limitation of motion to shoulder level and pain associated with his right shoulder disability is fully contemplated in the assigned 20 percent rating under Diagnostic Code 5202.  Specifically, the 20 percent rating currently assigned for the Veteran's disability under Diagnostic Codes 5010-5202 contemplates recurrent dislocation of the scapulohumeral joint with frequent episodes and "guarding of all arm movements only at shoulder level."  38 C.F.R. § 4.71a, Diagnostic Code 5202 (emphasis added).  

As noted in Esteban, the "critical element" in determining whether rating under more than one diagnostic code is in order is whether the ratings under different diagnostic codes would be based on the same manifestation of disability or whether none of the symptomatology upon which the separate ratings would be based is duplicative or overlapping.  Here, it cannot be said that the symptoms associated with arthritis and dislocation of the shoulder are wholly distinct and separate.  Rather, the criteria under both Diagnostic Codes overlap, inasmuch as they both contemplate limited motion of the arm; one as a result of guarding, and the other as a result of objectively confirmed limitation of motion.  As such, the Board finds that a separate or higher rating under Diagnostic Code 5201 is not warranted.  

As noted, the Veteran's right shoulder disability is already in receipt of a 20 percent rating under 5010-5202, which contemplates impairment of the humerus.  The December 2009 VA examiner stated that the Veteran suffers from infrequent episodes of dislocation, and thus, such symptomatology is appropriately reflected by the 20 percent rating criteria (i.e., infrequent episodes of dislocation of the humerus at the scapulohumeral joint and guarding of arm movement at shoulder level).  As reflected above, the evidence does not show symptomatology which would allow for a higher rating under this code.  In other words, there is no evidence of frequent episodes of dislocation with guarding of all arm movement, fibrous union, nonunion, or loss of head of the humerus.  Thus, based on the evidence of record, the criteria for a rating in excess of 20 percent are not met.  
The Board also finds that no higher evaluations can be assigned pursuant to any other potentially applicable diagnostic codes.  Because there are specific diagnostic codes to evaluate shoulder disabilities, including arthritis, consideration of other diagnostic codes for evaluating the disability does not appear appropriate.  See           38 C.F.R. § 4.20 (2012) (permitting evaluation, by analogy, where the rating schedule does not provide a specific diagnostic code to rate the disability); Butts v. Brown, 5 Vet. App. 532 (1993).

For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for increased evaluation in excess of 20 percent for degenerative joint disease of the right shoulder, and the claim must be denied.  Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application.  See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7.

Extraschedular Consideration

The Board has considered whether referral for extraschedular evaluations are warranted for the Veteran's right shoulder disability.  In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2012).  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 the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran'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 a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran'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) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization").  When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  38 C.F.R. 3.321(b)(1).

Turning to the first step of the extraschedular analysis, the Veteran's right shoulder disability has been manifested by degenerative changes in the right shoulder, and limitation of motion, including due to pain and infrequent dislocations.  The schedular rating criteria specifically contemplate ratings based on limitation of motion, including motion limited to factors such as pain, weakness, and guarding (38 C.F.R. §§ 4.40, 4.45, DeLuca).  In this case, comparing the Veteran's disability level and symptomatology of the right shoulder to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate.  

The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations.                   38 U.S.C.A. § 1155.  "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.  In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the 
effect on his daily life and difficulty in performing his job duties as a tool manufacturer.  In the absence of exceptional factors associated with the Veteran's right shoulder disability, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

An evaluation in excess of 20 percent for degenerative joint disease of the right shoulder is denied.


REMAND

TDIU

The record contains evidence suggesting the Veteran may be unemployable due to his service-connected right shoulder disability.  Specifically, the Veteran's October 2012 statement asserts that he retired because he was unable to perform his job duties because of his shoulder disability.  

Such evidence in the record suggesting unemployability constitutes an informal claim for TDIU.  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) (2012) that an informal claim identify the benefit sought has been satisfied and VA must consider whether the veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001) (VA to determine all potential claims raised by the evidence, applying all relevant laws and regulations).  See also Rice, 22 Vet. App. 447 (suggesting, in an effective date appeal, that an appeal for higher rating somehow includes TDIU, or that a TDIU must arise from an increased rating claim, unless it is the veteran who raises the TDIU claim).  Based upon the foregoing, the Board finds that the evidence of record has raised a claim of entitlement to TDIU.

TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a) (2012).  Multiple disabilities resulting from a common etiology or single accident are considered a single disability for determining TDIU eligibility.  Id. 

In this case, service connection has been established for degenerative joint disease of the right shoulder, evaluated as 20 percent disabling, and a right shoulder scar has been evaluated as 10 percent disabling.  As such, the Veteran has a combined disability evaluation of 30 percent.  See 38 C.F.R. § 4.25, Table I, Combined Rating Table (2012).  Thus, the combined schedular rating criteria for consideration of TDIU under 38 C.F.R. § 4.16(a) are not met because the Veteran does not have a single disability ratable at 60 percent or more, and does not have two or more service-connected disabilities with a combined rating of at least 70 percent with one disability rated at least 40 percent.  

Having failed to meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria.  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  Submission to the Director, Compensation and Pension Service, for extra-schedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a).  38 C.F.R. § 4.16(b).

The evidence of record addressing the issue of the Veteran's employability is found in the Veteran's own statements, in VA treatment records, and in a VA compensation examination report dated December 2009.  Specifically, the Veteran contends that he had to retire from his job as a tool manufacturer because of pain and limitation of motion associated with his right shoulder disability.  In a statement dated July 2010, the Veteran contends that his most challenging task at work involved the advanced safety systems which require both hands to push two buttons, approximately 600 times per hour.  Although the December 2009 VA examiner identified significant effects on the Veteran's usual occupation (decreased manual dexterity and strength, problems lifting, carrying, and reaching), he did not provide an opinion as to employability.  See Friscia v. Brown, 7 Vet. App. 294, 297 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (holding that where an appellant presents evidence of unemployability, VA has a duty to supplement the record by obtaining an examination which includes an opinion as to what effect the appellant's service-connected disability has on his ability to work).  

As the analysis and findings above in this Board decision reflect, the Board has no authority to assign a TDIU rating under 4.16(b) where a claimant does not meet the schedular requirements of 4.16(a), without first referring the case to the Director, Compensation & Pension Service.  See Barringer v. Peake, 22 Vet. App. 242, 244 (2008) (the Board may not assign an extraschedular rating in the first instance).  The code clearly provides that a claim for extraschedular consideration under            38 C.F.R. § 4.16(b) must be determined by the Director, Compensation & Pension Service.  Bowling v. Principi, 15 Vet. App. 1 (2001). 

Accordingly, the issue of a TDIU is REMANDED for the following action:

1.  Send the Veteran proper VCAA notice as to what is needed to substantiate a claim for entitlement to a TDIU, and undertake any development necessary before adjudication. 

2.  Adjudicate the issue of TDIU, including, if necessary, pursuant to § 3.321(b)(1), referral of the TDIU claim to the VA Under Secretary for Benefits or the Director, Compensation and Pension Service for extraschedular consideration.

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. 2012).




____________________________________________
J. PARKER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs