Citation Nr: 1330086 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 10-25 699 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU), prior to November 17, 2010. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs ATTORNEY FOR THE BOARD James R. Siegel, Counsel INTRODUCTION The Veteran served on active duty for more than 18 years, prior to his discharge in May 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The RO originally denied the Veteran's claim for TDIU in an August 2009 rating decision. Based on the receipt of additional evidence, the RO, in a September 2011 rating action, granted TDIU, effective November 17, 2010. When this case was previously before it in November 2012, the Board noted the Veteran's statements indicated he believed he has been unemployable since April 2009 and, accordingly, the claim was remanded to ensure due process. The case is again before the Board for appellate consideration. In its November 2012 determination, the Board denied the Veteran's claim for an effective date for an award of a temporary total rating under the provisions of 38 C.F.R. § 4.30 (2012), prior to August 6, 2009. This decision, accordingly, is limited to the issue set forth on the previous page. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND A TDIU rating for compensation purposes 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 a result of a single service-connected disability ratable at 60 percent or more; or if there are two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Under VA regulations, when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 CF.R. § 4.16(a), the RO may submit such case to the Director, Compensation and Pension (C&P) Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from granting a total rating under section 4.16(b) because the authority to grant such a rating is vested specifically in the Director, C&P Service. Should the Board find that a case it is reviewing on appeal is worthy of consideration under section 4.16(b), the Board may remand the case to the RO for referral to the Director, C&P Service, but the Board may not grant a total rating in the first instance. See Floyd v. Brown, 9 Vet.App. 88, 95 (1996) (noting that Board may consider whether referral to "appropriate first-line officials" for extraschedular rating is required); see also Bagwell v. Brown, 9 Vet.App. 337, 339 (1996). Thus, the decision by the RO whether to refer a case to the Director for extra-schedular consideration is an adjudicative decision subject to review by the Board. Moreover, where there has been a review by the C&P Director, that determination is subject to review by the Board on appeal. Anderson v. Shinseki, 22 Vet.App. 423 (2009) (noting that "although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). During the relevant period prior to November 17, 2010, service connection was in effect for recurrent lumbosacral disc herniation, evaluated as 40 percent disabling (a 100 percent rating pursuant to 38 C.F.R. § 4.30 was in effect from August 6, 2009, through October 31, 2009); paracervical muscle spasm, evaluated as 10 percent disabling, radiculopathy of the left leg, evaluated as 10 percent disabling prior to February 1, 2010, and evaluated as noncompensable, from February 1, 2010; and for bilateral hearing loss, evaluated as noncompensable. The combined schedular rating was 50 percent. Thus, the schedular criteria under 38 C.F.R. § 4.16(a) were not met. However, review of the evidence suggests that the Veteran last worked on April 24, 2009. The evidence further suggests that it was medically recognized over the months that followed that surgery was required. Under these circumstances, the Board finds that referral to the Director, C&P is appropriate for extraschedular consideration under 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The RO should refer the Veteran's claim to the Director, C&P for extraschedular consideration under 38 C.F.R. § 4.16(b) prior to November 17, 2010. 2. If the claim remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond. The case should then be returned to the Board for appellate review. 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). _________________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).