Citation Nr: 1318103 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 91-55 066 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for chronic pulmonary tuberculosis (CPT), reinfection type, moderately advanced, arrested, with fibrothorax, pulmonary hypertension, and pleural plaquing (respiratory disability), prior to November 29, 2001. 2. Entitlement to a total disability based upon individual unemployability due to service-connected disability (TDIU), prior to November 29, 2001. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his Spouse ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION The Veteran served on active duty from July 1946 to October 1947. This matter came to the Board of Veterans' Appeals (Board) on appeal from an August 1990 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In an April 1999 decision, the Board reopened and denied the Veteran's claim for service connection for hypertension and also denied his claims for an increased disability rating for service-connected CPT and TDIU. The Veteran appealed the Board's April 1999 decision to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in March 2001, the Court vacated the Board's decision and remanded the claim to the Board for action consistent with the Veterans Claims Assistance Act of 2000 (VCAA). The Board again denied the Veteran's claims in a May 2002 decision. The Veteran appealed the Board's May 2002 decision to the Court and in an Order dated in February 2003 the Court vacated the Board's decision and remanded it for compliance with a joint motion for remand (JMR). In a March 2009 rating decision, the RO included both pleural plaquing and pulmonary hypertension in the Veteran's service-connected CPT with fibrothorax, and granted an increased 100 percent disability rating from November 29, 2001. In an April 2010 decision the Board again denied the Veteran's claims. The Veteran appealed the Board's April 2010 decision to the Court and in a May 2012 memorandum decision, the Court vacated that part of the Board's decision denying an increased disability rating for CPT and TDIU and remanded it for compliance with the terms of the memorandum decision. The Court affirmed the Board's denial of service connection for hypertension. In August 1998, the Veteran appeared at a hearing before a Veterans Law Judge, who has since retired from the Board. In March 2013, the Veteran was advised of his right to a second Board hearing before another judge and to let VA know whether he wanted a second hearing within thirty days of the date of the letter. Later that month, the Veteran responded, waiving his right to a second hearing and requesting that his case be considered on the evidence of record. The Chairman has reassigned the matter to the undersigned Veterans Law Judge. The May 2002 Board decision noted that the Veteran had raised the issue of clear and unmistakable error in a 1950 rating decision that reduced the Veteran's 100 percent evaluation and referred the issue to the RO for appropriate action. The evidence of record fails to show that the issue was adjudicated. Therefore, it is again referred to the RO for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of a higher rating, on an extraschedular basis, CPT with fibrothorax, pulmonary hypertension and pleural plaquing, prior to November 29, 2001, is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. From July 15, 1989, to October 7, 1996, the Veteran's CPT with fibrothorax, pulmonary hypertension and pleural plaquing was manifested by extensive pleural adhesions, marked restriction of respiratory excursions and chest deformity intractable to treatment; there is no evidence of persistent underweight with marked weakness and fatigability on slight exertion. 2. From October 7, 1996, to November 29, 2001, the Veteran's CPT with fibrothorax, pulmonary hypertension and pleural plaquing was manifested by extensive pleural adhesions, marked restriction of respiratory excursions and chest deformity intractable to treatment; there is no evidence of the Veteran having been persistently underweight with marked weakness and fatigability on slight exertion. 3. From October 7, 1996, to November 29, 2001, there is no evidence of FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent, DLCO less than 40 percent predicted, or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation, or cor pulmonale or; right ventricular hypertrophy or pulmonary hypertension (shown by Echo or cardiac catheterization), or episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. 4. The Veteran's service-connected respiratory disability precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW 1. The criteria for a schedular rating of 60 percent, and no more, for CPT with fibrothorax, pulmonary hypertension and pleural plaquing have been met from July 15, 1989, to November 29, 2001. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 1991, 2002); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.97, Diagnostic Code 6845 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6811 (1996). 2. The criteria for a grant of TDIU have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA's Duties To Notify And Assist During the pendency of this appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was signed into law. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide that pertains to the claim. 38 C.F.R. § 3.159. This notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini II, 18 Vet. App. at 119. With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Letters dated in July 2003, January 2004, and April 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). A March 2006 letter informed him of the evidence needed for the assignment of evaluations and effective dates for initial awards of service connection. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the July 2003, January 2004 and April 2004 notices were provided to the Veteran after his claim was adjudicated, the subsequent readjudication of the claim has cured any defect with regard to the time of notice. Cf. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). Therefore, the Board finds that any defect with respect to the timing of the receipt of the VCAA notice requirements for his claims is harmless error in this case. In view of this, the Board finds that VA's duty to notify has been fully satisfied with respect to this claim. VA has secured or attempted to secure all relevant documentation to the extent possible. Service treatment records, VA treatment records and adequate medical examination reports, as well as private treatment records are of record. Transcripts of the Veteran's and his wife's testimony at personal Board and RO hearings are also of record. The Veteran's written contentions, as well as written statements from his wife having personal knowledge of his condition, are also of record, and these records were reviewed by both the RO and the Board in connection with the Veteran's claim. VA examinations with respect to the issue on appeal were obtained in January 1992, May 1992, August 1995, and March 1998, and a medical advisory opinion from a VHA specialist was obtained in December 2009. 38 C.F.R. § 3.159(c) (4). The examination reports and opinion are adequate in aggregate as they are predicated on examinations of the Veteran or review of his extensive claims files and fully addressed the rating criteria relevant to evaluating the Veteran's service-connected CPT with fibrothorax, pulmonary hypertension and pleural plaquing. Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations with respect to the issue on appeal has been met, and there remains no issue as to the substantial completeness of the Veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations with respect to the issues on appeal has been met, and there remains no issue as to the substantial completeness of the Veteran's claims. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.159, 3.326(a) (2012). The Veteran has been afforded both a hearing before a Veterans Law Judge (VLJ) and a RO Decision Review Officer (DRO) in which he and his wife presented oral argument in support of his claim for an increased disability rating for CPT with fibrothorax. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during both hearings, neither the VLJ nor the DRO noted the bases of the prior determinations or the elements that were lacking to substantiate the increased rating claim. Both the VLJ and the DRO asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. Neither the VLJ nor the DRO specifically sought to identify any pertinent evidence not currently associated with the claim. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board or DRO hearing. By contrast, the hearings focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, both the VLJ and the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board finds that VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. Analysis Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Prior to October 7, 1996 Prior to November 29, 2011, the Veteran is currently assigned a 20 percent disability rating, effective December 3, 1985, for chronic pulmonary tuberculosis, re-infection type, moderately advanced, arrested, pursuant to Diagnostic Code 6724, the rating code for chronic inactive pulmonary tuberculosis. During the pendency of the Veteran's appeal, the provisions of Diagnostic Code 6724 were revised by VA, effective October 7, 1996. As noted above, the Board issued a Decision in April 2010 that denied the Veteran's claim for a disability rating in excess of 20 percent for CPT prior to November 29, 2011, under both the prior and revised criteria for Diagnostic Code 6724. However, the May 2012 Court's memorandum decision reversed the Board's decision. Moreover, the Court ordered the Board to find that the evidence of record supported an award of 60 percent for CPT from July 1990 to October 7, 1996, under the provisions of Diagnostic Code 6811 the rating code for purulent (empyema) pleurisy (later rescinded by VA, effective October 7, 1996. See Fed. Reg. 46, 720-731 (1996)). Prior to October 7, 1996, purulent (empyema) pleurisy was rated as 60 percent disabling with symptoms of severe empyema with extensive pleural or pleuropericardial adhesions, marked restriction of respiratory excursions and chest deformity, intractable to treatment. Very severe empyema consisting of the symptoms outlined under "severe" plus persistent underweight, with marked weakness and fatigability on slight exertion was rated as 80 percent disabling. A 100 percent evaluation was assigned following intrapleural or extrapleural pneumolysis. 38 C.F.R. § 4.97, Diagnostic Code 6811. To support this award, the Court noted in the memorandum decision "that the evidence of record includes diagnoses of severe, extensive pleural adhesions and fibrothorax, which causes 3/4 volume loss in his left lung and restrictive expansion of that lung, as well as the over-expansion of his right lung which causes an enlarged chest." The Court further noted a December 1991 VA pulmonary function test (PFT) that while showing mild restrictive defect and no airflow obstruction, indicated that ventilator capacity was disproportionately reduced. An August 1995 VA examination report also showed the Veteran's complaints of being very short of breath and wheezing with objective findings that included an increased AP diameter to the chest and a marked expiratory wheeze on the left. Countless chest X-ray studies, as well as CT scans of the thorax and abdomen during the appellate period show fibrothorax of the left lung with old healed TB empyema, pleural calcifications and decreased volume of the left lung with overexpansion of the right lung. An October 1996 CT scan of the thorax also showed that the right lung overexpansion herniated to midline and minimally displaced the Veteran's trachea. As the Court has made an actual determination on the increased schedular rating issue from July 1990 to October 6, 1996, the Board is bound by the findings of the Court's May 2012 memorandum decision. See Browder v. Brown, 5 Vet. App. 268, 270-71 (1993). The Court further directed the Board to determine the appropriate Diagnostic Code and rating for the one-year period prior to the July 1990 claim for the increased rating and to determine the appropriate Diagnostic Code for the period October 7, 1996, to November 29, 2001, when the revised criteria for evaluating respiratory disabilities became effective. The Veteran's present claim for an increased rating was received by the RO on July 15, 1990. The Board has considered evidence of symptoms since July 1989, one year prior to receipt of the claim. See 38 C.F.R. § 3.400. After considering the totality of the record, and resolving all reasonable doubt in his favor, the Board concludes that the evidence supports a 60 percent disability rating as early as July 15, 1989, one year prior to the date his claim was received. An April 1990 VA chest X-ray study shows evidence of a left fibrothorax, while an April 1990 VA treatment record notes the Veteran's complaints of wheezing and dry cough. Moreover, the Veteran has repeatedly provided credible written contentions and testimony that he had difficulty in his last year of teaching, from 1989 to 1990, due to his service-connected CPT with fibrothorax. Since October 7, 1996 During this appeal, the provisions for evaluating respiratory disabilities were revised by VA, effective October 7, 1996. Diagnostic Code 6811 was rescinded. Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating his service-connected lung disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); see also 38 U.S.C.A. § 5110(g) (West 2002). Under the rating code currently in effect, the Veteran's CPT with fibrothorax disability is evaluated under the general rating formula for restrictive lung disease. Under this formula, if the FEV-1 is 40 to 55 percent of predicted, or if the FEV- 1/FVC is 40 to 55 percent of predicted, or the DLCO (SB) is 40 to 55 percent of predicted, or there is maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), a 60 percent evaluation is warranted. If the FEV-1 is less than 40 percent of predicted value, or the FEV-1/FVC is less than 40 percent, or the DLCO (SB) is less than 40 percent predicted, or the maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or there is cor pulmonale (right heart failure), or there is right ventricular hypertrophy, or there is pulmonary hypertension (shown by echo or cardiac catheterization), or there is an episode(s) of acute respiratory failure, or the veteran requires outpatient oxygen therapy, then a 100 percent evaluation is warranted. The primary disorder may also be rated. Note (1) states that a 100 percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved. 38 C.F.R. § 4.97, Code 6843. After consideration of all the evidence, the Board concludes that the prior rating criteria are more favorable to the Veteran and will continue to apply these rating criteria through October 7, 1996, until November 29, 2001. In this respect, although contemporary chest X-ray studies and CT scan continue to show pleural thickening, scarring and calcification in the left lung with diffuse volume loss, and treatment records repeatedly note the Veteran's complaints of shortness of breath, wheezing and chest wall pain due to his lung disability, the only PFT conducted subsequent to October 7, 1996, is an August 1999 VA report indicating FEV-1/FVC of 72 percent of predicted, despite noting severe obstruction with air trapping. There are no other PFT values provided during this period and the Veteran is not entitled to an evaluation in excess of 60 percent prior to November 29, 2001, when a private echocardiogram first indicated evidence of mild pulmonary hypertension. Despite the private physician's February 1998 letter indicating that the Veteran "probably" had pulmonary hypertension, there was no objective evidence of such prior to the November 29, 2001, echocardiogram. Likewise, although the evidence from October 7, 1996 to November 29, 2001, continued to show extensive pleural adhesions on the left lung, hyperinflation of the right lung, marked restriction of respiratory excursions and chest deformity, there is no evidence that there were additional symptoms of the Veteran's being persistently underweight, or having marked weakness and fatigability on slight exertion to warrant a higher evaluation under prior Diagnostic Code 6811 during this period. Given the findings as discussed above, the criteria for a 60 percent schedular rating, but no more, have been met prior to August 29, 2001, and to that extent the Veteran's claim is granted. TDIU The Veteran contends that he is entitled to TDIU benefits. In support, he reports that he worked as a math teacher from the late 1950s until June 1, 1990, when he was forced to retire due to symptoms stemming from his service-connected respiratory disability. Based on the evidence of record, the Board finds that entitlement to a TDIU based on his service-connected disability is warranted. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master degree in education and his part-time work as a tutor). The Veteran's sole service-connected disability, his respiratory disability, is now rated as 60 percent disabling, effective July 15, 1989; thus, during the period since he has been unemployed, i.e., since June 1, 1990, the Veteran met the threshold schedular requirements for an award of TDIU benefits under 38 C.F.R. § 4.16(a). In numerous statements and in his hearing testimony, the Veteran has competently and credibly reported that he was unable to continue working as a math teacher due to respiratory symptoms stemming from his service-connected respiratory disability. Further, as the Court observed in its May 2012 memorandum decision, there is medical evidence of record, both VA and private, that supports his claim. Indeed, in a January 1994 statement, the Chief, Pulmonary Section of the Birmingham, Alabama, VA Medical Center stated: I am writing to support the [c]laim of [the Veteran] for disability from work due to his service-related condition, inactive tuberculosis. [The Veteran] developed tuberculosis while in the service. Although the infection is currently inactive he has subsequently developed progressive fibrothorax due to his previous reaction to the infection and has shortness of breath due to this problem. This shortness of breath has made it impossible for the patient to continue with his work as a math teacher In addition, a private medical assessment received in February 1998 reflects that the examiner opined that the Veteran's service-connected respiratory disability restricted his physical activity and rendered him unemployable. After a review of the evidence of record, the Board finds that, resolving any reasonable doubt as mandated by law (38 U.S.C.A. § 5107; 38 C.F.R. § 3.102), the evidence is in equipoise whether the Veteran's service-connected respiratory disability prevents him from securing or following substantially gainful employment. Significantly, the evidence of record indicates the Veteran last worked full-time as a math teacher on June 1, 1990. Given the severity of the Veteran's respiratory disability, the fact that he was unemployed as a math teacher prior to that since the 1950s, the Board finds that the totality of the evidence is in equipoise and sufficiently reflects that the Veteran's respiratory disability is of such a severity that he would be unable to secure or follow a substantially gainful occupation. In sum, the Board finds that the evidence is in equipoise, and the Veteran is entitled to an award of a TDIU rating, effective June 1, 1990. Hence, entitlement to TDIU is warranted. ORDER Entitlement to a 60 percent schedular rating for service-connected CPT with fibrothorax, pulmonary hypertension and pleural plaquing, from July 15, 1989, to November 29, 2001, is granted, subject to the law and regulations governing the payment of monetary benefits. Entitlement to a TDIU granted effective June 1, 1990, subject to the applicable laws and regulations governing the payment of monetary benefits. REMAND With regard to the extraschedular aspect of the Veteran's claim for a higher rating for his service-connected CPT with fibrothorax, pulmonary hypertension and pleural plaquing, prior to November 29, 2001, the Court directed the Board to address whether a referral for an extraschedular disability rating is appropriate. The Veteran has testified that his lung disability has affected his swallowing and his voice, especially when he was teaching. He has also repeatedly contended that the condition has reduced his energy and that he is unable to lift his arms due to chest wall pain associated with his lung disability. He avers that these symptoms made it impossible for him to continue working. A February 2004 private physician's letter also notes that the Veteran had difficulty using his arms without aggravating his lung condition. The VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The evidence on file requires that the Board remand the Veteran's CPT rating claim with respect to consideration of whether additional benefit may be provided by way of an extraschedular rating pursuant to 38 C.F.R. § 3.321. Given the February 2004 opinion, the Board finds that the established schedular criteria may be inadequate to describe the severity of the Veteran's service-connected lung disability, which may present an unusual disability picture of marked interference with employment not accounted for in the Rating Schedule. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Therefore, a remand is necessary for VA to consider the application of 38 C.F.R. § 3.321(b), permitting extraschedular evaluation, with regard to the service-connected lung disability. Id. Although in this decision the Board grants a 60 percent schedular rating for the Veteran's respiratory disability effective July 15, 1989, and to a TDIU effective June 1, 1990, the Board observes that the Court has long held that the criteria for a TDIU and to an extraschedular rating are measured differently. See Colayong v. West, 12 Vet. App. 524, 537 (1999); Kellar v. Brown, 6 Vet. App. 157, 162 (1994) (holding that, because extraschedular rating and TDIU ratings are measured differently, those claims were not inextricably intertwined). The Board, however, cannot award entitlement to an extraschedular rating in the first instance and must instead submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. See Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995). As such, this aspect of the Veteran's appeal must be remanded. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. Submit the issue of entitlement to an increased disability rating for CPT with fibrothorax, pulmonary hypertension and pleural plaquing, rated 60 percent prior to November 29, 2001, to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service, for consideration of an assignment of an extraschedular evaluation for the period prior to November 29, 2001. 2. Then readjudicate the appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and be provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. 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). 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs