Citation Nr: 1327454 Decision Date: 08/27/13 Archive Date: 09/05/13 DOCKET NO. 05-41 478 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an increased rating, on an extraschedular basis, for a right knee muscle injury, postoperative, currently evaluated as 10 percent disabling. 2. Entitlement to a total rating based upon individual unemployability based upon service-connected disabilities (TDIU), on an extraschedular basis. ATTORNEY FOR THE BOARD G. Jivens-McRae, Counsel INTRODUCTION The Veteran served on active duty from July 1987 to April 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis Missouri, which denied a rating in excess of 10 percent for the Veteran's service-connected right knee disability. The record reflects that the Veteran requested a hearing in conjunction with his appeal. However, a June 2007 letter from the Veteran's representative noted that the Veteran wished to withdraw his request for a hearing. In August 2008, the Board remanded the Veteran's claim for an increased rating for the service-connected right knee muscle injury, postoperative, for additional development. In April 2009, the Board specified the issue on appeal as entitlement to an increased disability rating, on a schedular or extraschedular basis, for the service-connected right knee muscle injury, postoperative, currently evaluated as 10 percent disabling. Also, in April 2009, the Board issued a decision, denying the claim for a schedular disability rating in excess of 10 percent for the service-connected right knee muscle injury, postoperative, and remanded for referral to the VA Director of Compensation and Pension (C&P) Service to make a determination as to the Veteran's entitlement to an increased rating, on an extraschedular basis, for the service-connected right knee muscle injury, postoperative. Although this issue was referred to the VA Director of Compensation and Pension Service, the determination later rendered was undated and insufficient. Thus, there was not substantial compliance with the remand directives set out in April 2009 as it pertains to the issue of entitlement to an increased rating, on an extraschedular basis, for the service-connected right knee muscle injury. Stegall v. West, 11 Vet. App. 268 (1998). In January 2010, the Board issued another remand, requesting that this matter again be referred to the VA Director of C&P Service to clarify the initial determination or provide a new opinion with regard to the Veteran's claim for an increased rating, on an extraschedular basis, for the service-connected right knee muscle injury, postoperative. The record reflects that in April 2010, another determination was issued by the VA, Director of C&P Service. In a February 2011 decision, the Board denied the claim for an increased disability rating, on an extraschedular basis, for the service-connected right knee muscle injury, postoperative, currently evaluated as 10 percent disabling. The issue of TDIU was remanded to the RO/AMC for further development. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a September 2011 Order, the Court granted the VA General Counsel 's and Appellant's Joint Motion For Partial Remand. The Board's decision as to the current claim was vacated, and it was remanded to the Board. The Order called for the increased rating extraschedular claim to be remanded so that the Board could provide adequate discussion of reasons and bases for the denial. The remainder of the Board's decision was left intact. In February 2012, the claim for an increased rating on an extraschedular basis was remanded. In April 2012, the Veteran's private attorney withdrew as the Veteran's representative in this claim. After multiple changes in residency by the Veteran, jurisdiction in this case now lies with the New Orleans, Louisiana RO. The issue of entitlement to a TDIU on an extraschedular basis 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. VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran's right knee muscle disability was adequately considered under the schedular criteria, and, in any event, does not represent an exceptional or unusual disability picture that is characterized by factors such as frequent hospitalizations or marked interference with employment. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for a right knee muscle injury, postoperative, on an extraschedular basis have not been met. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2012); 38 C.F.R. § 3.321 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants 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). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, neither the Veteran nor his previous representative alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. A pre-adjudication notice letter provided to the Veteran in March 2004 met the VCAA notice requirements for an increased rating claim. Prior to adjudication in March 2006, the Veteran was notified as to what was necessary as to a disability rating and effective date for the award of benefits. See Dingess. Under these circumstances, the Board finds that adequate notice was provided to the Veteran. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA also has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent VA treatment records, and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159. The RO associated the Veteran's VA treatment records with the claims file. No outstanding evidence has been identified. Next, VA examinations and opinions with respect to the issues on appeal were obtained in June 2004, December 2008, April 2010, August 2012, November 2012, and January 2013. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examinations were thorough, and well reasoned, and took into account the Veteran's personal history/complaints. An undated opinion from the Director of C&P Service and an April 2010 opinion from the same did not provide rationale for the conclusions reached. The January 2013 opinion from the C&P Service provided background information, but it, too, did not give supporting rationale for the findings made. Finally, the March 2013 opinion provided by that office not only gave sufficient background evidence, the opinion was adequate, thorough, and provided rationale for the findings and conclusions presented. As for the aforementioned examinations, they were also complete, and took into account the Veteran's history and complaints. The Board therefore finds that these examinations and opinions were adequate for rating purposes. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was provided an opportunity to present his case before the Board for a hearing. He requested a hearing and later withdrew his request. Based on the foregoing, the Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Extraschedular Rating The Veteran seeks an evaluation in excess of 10 percent for residuals of right knee muscle injury, on an extraschedular basis. As noted above, in a decision of April 2009, the Board denied entitlement to a schedular evaluation in excess of 10 percent for right knee muscle injury, postoperative. The Veteran did not appeal this decision and it is final. Pursuant to 38 C.F.R. § 3.321(b)(1), the Director, C&P Service, is authorized to approve an extraschedular evaluation if the case "presents such and 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) (2012). There is a three-step analysis for determining whether an extraschedular rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008); aff'd Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule for that disability to determine whether the disability picture is adequately contemplated by the rating schedule. Id. In the second step of the inquiry, 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.' Id. see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the rating schedule is inadequate to evaluate the claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the third step is to refer the case to the Under Secretary for Benefits or the Director of C&P Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In other words, the Board may not address the issue in the first instance. In April 2009, an increased rating on a schedular basis for right knee muscle injury, postoperative was denied. The Board remanded the issue of an increased rating on an extraschedular basis for right knee muscle injury postoperative, at that time. Pursuant to the Board's April 2009 remand, the claim was referred to the Director, C&P Service for extraschedular consideration of the claim for right knee muscle injury. In an undated determination, the Director noted outpatient treatment records of March 2005 and July 2007, which were unrelated to the issue on appeal. The Director stated that the objective evidence of record did not establish that the Veteran's service-connected right knee muscle injury, postoperative, was manifested by such 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. Therefore it was determined that entitlement to an extraschedular increased rating for service-connected right knee muscle injury, postoperative, was not established. In a Board remand in January 2010, the Board found that the conclusion made by the Director, C&P Service, was responsive to the aforementioned referral request, but the citation of the unrelated VA treatment records dated in March 2005 and July 2007, simply did not provide a basis for the Director's conclusion. Therefore, the Board remanded the claim again for referral to the Director, C&P Service, for a clarification of the prior decision or the reasoning for citing unrelated VA treatment records. In April 2010, the Director, C&P Service, provided a determination addressing the Board's January 2010 remand for clarification of the prior undated determination, or the reasoning for citing to unrelated VA treatment records in the undated determination. At the outset, it was noted that the undated letter should have been dated in August 2009. The Director, C&P Service, indicated that VA outpatient treatment of July 2007 noted contact dermatitis secondary to poison ivy and the Veteran was said to have a well documented history of service-connected knee pain and reported wearing neoprene sleeves, bilaterally, and taking pain medication on an as needed basis. An outpatient treatment record of September 2008 indicated a telephone contact with the Veteran wherein he wanted to know if he could get an MRI of the right knee, reporting to have problems with his knee. A September 2008 entry a few days later noted the Veteran needed to be evaluated to see if an MRI of the right knee was necessary. Again, the Director, C&P Service, stated that the objective evidence of record did not establish that the Veteran's service-connected right knee muscle injury, postoperative, was manifested by such 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. Therefore, it was determined that entitlement to an extraschedular increased rating for service-connected right knee muscle injury, postoperative, was not established. In a February 2011 Board decision, the Board determined that it was bound by the determination rendered by the Director, C&P Service, and based on the opinion rendered by that Service, found the Veteran was not entitled to an extraschedular increased rating for service-connected right knee muscle injury, postoperative. The Veteran appealed the Board's February 2011 denial to the Court. In a September 2011 Order, the Court granted the VA General Counsel 's and Appellant's Joint Motion For Partial Remand. The Joint Motion For Partial Remand indicated that the Board's reliance on Floyd v. Brown, 9 Vet. App. 88 (1996), was misplaced. Floyd indicates that neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the C&P Service's denial of the extraschedular rating on appeal. The actual review of the extraschedular claim is done by the Director of C&P Service in the first instance. Thereafter, the Board has jurisdiction to review whether the decision not to award an extraschedular rating was appropriate under all three elements as outlined in Thun v. Shinseki, 572 F.3d (1366) (Fed. Cir. 2009). This was not done. The Board's decision as to the current claim was vacated, and it was remanded to the Board. The Order called for the claim to be remanded so that the Board could provide adequate discussion of reasons and bases for the denial. In February 2012, the Board remanded the claim to the RO for further development. VA evidence regarding treatment the Veteran received for his right knee was submitted but was not reviewed. Although the Director, C&P Service, concluded on two previous occasions that entitlement to an extraschedular increased rating for the service-connected right knee muscle injury, postoperative, was not established, on neither occasion was a rationale for the opinion provided. In January 2013, the RO resubmitted to the Director , C&P Service, for consideration the issue of entitlement to extraschedular rating for the Veteran's right knee muscle injury, postoperative, in accordance with 38 C.F.R. § 3.321(b). Additional VA treatment records from July 2010 to November 2011 were submitted, the Veteran underwent a VA knee examination in August 2012, and a subsequent opinion was rendered in November 2012. The July 2010 to November 2011 VA treatment records were records of ongoing physical therapy for the Veteran's right knee. The Veteran reported during this period his ability to perform any kind of work that did not involve physical labor. The August 2012 VA knee examination showed right knee flexion of 0 to 95 degrees (0 to 140 degrees is normal) and extension of 0 degree (0 degree is normal). There was no pain on motion, and no additional limitation of motion following repetitive motion due to pain, fatigue, weakness, or lack of endurance. There was no tenderness or pain to palpation for joint line or soft tissue of the right knee, nor weakness, instability, or patellar subluxation/dislocation. It was noted that the Veteran had not worked since a year-long incarceration in 2009. In a subsequent November 2012 VA opinion, the VA examiner described the Veteran's right knee as having mild restricted movement and pain, and noted it would not restrict the Veteran from light to sedentary work. In January 2013, in a Memorandum to the Director, C&P Service, the RO recommended a denial for an extraschedular evaluation for right knee muscle injury, postoperative, because the evidence did not show 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 regular schedular standards. The Acting Assistant Director, C&P Service, concurred with the recommendation. In March 2013, an administrative review for extraschedular consideration under the provisions of 38 C.F.R. § 3.321(b)(1) for the Veteran's service-connected right knee muscle injury, postoperative, was made. The Director, C&P Service, indicated that the right knee was examined in August 2012. He discussed that the Veteran had developed a left knee disability due to his service-connected right knee disability. There was painful right knee motion noted and evidence of less movement than normal and pain on movement. January 2012 diagnostic testing indicated mild degenerative changes with post trauma soft tissue, mild narrowing of the medial femoral tibial joint with soft tissue calcification adjacent the medial and femoral and tibial condyles. A 2005 MRI revealed left knee medial and lateral meniscus tears. A November 2012 addendum provided an opinion stating that the right knee muscle injury would allow the Veteran to work in a light sedentary capacity due to mild restricted movement and pain, but would not restrict gainful employment. The Director, C&P Service, indicated that the medical evidence demonstrates that the right knee symptoms present a slight disability affecting the tibia and fibula with mild restricted movement and pain causing interference with employment. When comparing the level of severity and symptomatology of the right knee with current rating schedule criteria, the current evaluation of 10 percent adequately reflects the level of severity of the right knee condition, rendering the disability picture inadequate. See Thun. He also indicated that although the Veteran's service-connected left knee condition was due to his service-connected right knee condition, there was no evidence that the left knee contributed to the level of severity and symptomatology of the right knee condition. The record did not demonstrate that the service-connected right knee condition presented evidence of an exceptional or unusual disability picture such as marked interference with employment or frequent periods of hospitalization which would render application of the current rating schedule criteria inadequate. Therefore, entitlement to an increased evaluation in excess of 10 percent for the service-connected right knee muscle injury, postoperative, was denied. Because the appropriate first line authority (Director, C&P Service) has adjudicated entitlement to an extraschedular rating, the Board may now consider the issue. The threshold question is whether the rating criteria adequately contemplate the Veteran's disability. The evidence of record, including treatment records and VA examinations, reflected ongoing complaints of and treatment for the Veteran's right knee muscle injury, postoperative. At a June 2004 VA examination, it was noted that on physical examination, there was evidence of crepitus over the right knee. He presented with subjective complaints of pain. The examiner stated that there was no evidence of functional loss or impairment of the right knee other than the Veteran's subjective complaints of pain. The x-rays taken did show calcific tendonitis consistent with his residuals from his service-connected right knee. VA outpatient treatment record of December 2006 indicated that the Veteran had minimal tenderness around the patella with pain greater on the right greater than the left. In July 2007, he was wearing neoprene sleeves on his knee, using pain medication, but the examination showed no effusion. The range of motion was noted to be 5 to 140 degrees, bilaterally. In December 2008, x-rays taken showed no significant changes from the x-rays previously taken in November 2006. The x-rays showed benign calcifications in the soft tissue of the knee. The Veteran cancelled his July 2009 VA examination and was incarcerated the next month. In 2010 and 2011, records were indicative of the Veteran's physical therapy performed by VA for his right knee disability. An MRI taken in July 2009 of the right knee showed small bone infarct and myositis ossificans in and around the proximal tibia. In August 2010, he was seen by his VA primary care physician and his right knee had full range of motion at that time with no effusion. In September 2010, he had mild ankle edema and x-rays showed calcification between the distal tibia and fibula with small spurs on top of the fibula. There was no evidence of fractures, dislocations, or bone destruction. In March 2011, the Veteran stated that his right knee had worsened since service. Objectively, there was little change in his x-rays performed at that time and in 2007. He complained at that time of difficulty walking without his knee braces. He was told he was allowed to wear them whenever he needed to wear them. In May 2011, he related that his right knee locked from time to time. He also complained of right ankle pain. He was given ankle sleeves for his right ankle. He was released from physical therapy in August 2011, and given home exercises to perform. The Veteran underwent VA examination in August 2012. He complained of right knee pain. Range of motion ranged from 0 degree to 95 degrees, with pain beginning at 90 degrees. There was no instability shown. X-rays at that time showed no significant patellofemoral degenerative joint disease. There was no abnormal tilting or subluxation of the patella. He was noted during examination to have well developed thigh and lower leg musculature. He was noted to move both of his knees within normal range of motion, but restricted his range of motion during testing. He demonstrated pain behavior out of proportion to objective testing. There was no knee joint swelling or instability noted. He indicated that he regularly used knee braces but used a cane only occasionally. VA examination showed mild restricted movement and pain. The examiner indicated that the Veteran's ability to work was not impacted by his right knee disability. It was noted that he had worked on and off as a meat cutter for 10 years; as a nursing assistant for two employers for 11 years; he was in shipping and receiving for a medical supply company for 3 months; and worked in construction off and on for 10 years. He was incarcerated for a year in 2009 and he had not worked since that time. The Veteran's right knee muscle injury, postoperative, is currently evaluated at 10 percent, pursuant to 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5262. DC 5262, impairment of the tibia and fibula, malunion, shows a 10 percent rating is warranted for slight knee or ankle disability and a 20 percent rating is warranted for moderate knee or ankle disability. A 30 percent rating is warranted for marked knee or ankle disability. For a 40 percent rating, nonunion of the tibia and fibula with loose motion, requiring a brace must be shown. 38 C.F.R. § 4.71a, DC 5262. The Veteran's symptom of ongoing right knee pain is adequately contemplated in the current rating assigned for impairment of the tibia and fibula. The schedular criteria specifically provide for rating knee or ankle disabilities on the basis of limitation of motion; or ankylosis; or incapacitating episodes. See 38 C.F.R. §§ 4.71a, DC 5256-5262 (2012). Although the schedular criteria provide for evaluations higher than the currently assigned rating, his right knee muscle injury, postoperative, has not manifested with the symptoms required to achieve such higher ratings. Primarily, his right knee muscle injury has been described as mild or slight throughout the rating period. For these reasons, the Veteran's disability picture (e.g. his disability level and right knee symptomatology) is adequately, and appropriately, contemplated by the applicable schedular rating criteria. The assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Moreover, the schedule provides for a greater evaluation for additional or more severe symptoms which simply are not present in this case. Because the current schedular criteria adequately compensate the Veteran for the current level of disability and symptomatology of his right knee muscle injury, postoperative, the threshold for an extraschedular rating is not met and the second step of the inquiry need not be addressed. Even if the available schedular evaluation for the right knee was inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as 'governing norms.' In this respect, the evidence of record does not show the right knee disability has required frequent periods of hospitalization during the period on appeal. In fact, the Veteran has not been hospitalized at all for his right knee disability during the rating period. Moreover, although he has alleged that his service-connected right knee has caused marked interference with his past employment, pursuant to this decision, the Board has determined that the Veteran's service-connected right knee disability has not had any marked interference whatsoever. The record shows that he has worked on a relatively consistent basis prior to incarceration in 2009. Thereafter, he has not had a consistent work history but that is not shown to be as a result of his right knee disability. Moreover, there is a November 2012 VA opinion of record which indicates, in pertinent part, that his right knee disability only shows mild restricted movement, and does not impact his ability to work. It is clear from his previous work history before incarceration and during this appeals period, and clear from the findings of the VA examiners of record, there has been no showing of marked interference with employment. The current schedular criteria adequately compensate the Veteran for the current level of disability and symptomatology of his right knee muscle injury, postoperative. Consequently, an extraschedular rating in excess of 10 percent for the service-connected right knee muscle injury, postoperative, is denied. ORDER Entitlement to an increased rating in excess of 10 percent on an extraschedular basis for a right knee muscle injury, postoperative, is denied. REMAND Additional development is necessary in this case. The Veteran asserts, in essence, that he warrants a TDIU based on his service-connected left and right knee disabilities. Based on his bilateral knee disabilities, he claims that he is unable to obtain substantially gainful employment. The Veteran is service-connected for right knee muscle injury, postoperative (rated as 10 percent disabling) and chondromalacia of the left knee, associated with right knee muscle injury, postoperative, (rated as 10 percent disabling). The combined rating is 20 percent. Therefore, the criteria for a total disability rating under the provisions of 38 C.F.R. § 4.16(a) are not met. Consequently, the only remaining question in this case is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, for purposes of a possible extra-schedular evaluation. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed under 38 C.F.R. § 4.16(b). The Board itself cannot assign an extra-schedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 337, 338-309 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although Bagwell and Floyd only dealt with ratings under § 3.321(b)(1), the analysis in those cases is analogous to TDIU ratings under § 4.16(b) as well, in view of that section's similar requirement of referral to the Director of VA's Compensation and Pension Service, in addition to Court precedents requiring consideration of § 4.16(b) when the issue is raised in an increased-rating case. See Stanton v. Brown, 5 Vet. App. 563, 570 (1993); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). That is, since the Board itself cannot assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case to the Director of C&P Services for an extra-schedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. In fact, the Court held that although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director, C&P Service, determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). See also Floyd, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director, C & P Service, for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter ... subject to decision by the Secretary shall be subject to one review on appeal to the Board."). Where, as in this case, a veteran fails to meet the applicable percentage standards, an extraschedular rating is for consideration where the veteran is found unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2012). Individual unemployability must be determined without regard to any non-service connected disabilities or a veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2012); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any new medical treatment records, from VA or otherwise, that may have come into existence since the time the claims file was last updated by the RO/AMC. 2. The RO/AMC should contact the Veteran and request again, that he complete and submit a VA Form 21-8940 on behalf of his claim. When received, it should be associated with the claims folder. 3. Thereafter, the RO/AMC should refer the Veteran's case to the Director, C&P Service, for extraschedular consideration for TDIU. 4. Upon completion of the above, readjudicate the issue on appeal. If the benefit sought on appeal remains denied, the Veteran, and his representative if he later acquires one, should be furnished an appropriate supplemental statement of the case and provided the opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. The Veteran 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs