Citation Nr: 1330486 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 06-13 837 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to extraschedular consideration under 38 C.F.R. § 3.321(b) for service-connected shoulder disabilities. REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from May 1974 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, which granted the Veteran's claim of service connection for post-operative residuals of the right shoulder, assigning a 20 percent rating effective October 1, 2000; a 100 percent rating based on hospitalization from November 8, 2002, to January 1, 2003; a 20 percent rating effective January 1, 2003; a 100 percent rating based on hospitalization from April 22, 2003, to June 1, 2003; and a 20 percent rating effective June 1, 2003. The RO also granted the Veteran's claim of service connection for degenerative joint disease of the left shoulder, assigning a 10 percent rating effective October 20, 2000. In an August 2007 rating decision, the RO assigned higher 30 percent ratings for post-operative residuals of the right shoulder and degenerative joint disease of the left shoulder effective July 10, 2007. In September 2008, the Veteran testified at a Travel Board hearing. A transcript of the hearing is associated with the claims folder. In March 2009, the Board remanded the case to obtain outstanding treatment and Social Security Administration (SSA) records. In February 2010, the Board remanded the case to afford the Veteran a VA examination to determine the current severity of his service-connected bilateral shoulder disabilities. In September 2012, the Board denied a rating greater than 20 percent prior to July 10, 2007, for post-operative residuals of the right shoulder; granted a rating of 40 percent since July 10, 2007, for post-operative residuals of the right shoulder; denied a rating greater than 10 percent prior to July 10, 2007, for degenerative joint disease of the left shoulder; denied a rating greater than 30 percent since July 10, 2007, for degenerative joint disease of the left shoulder; and denied an effective date earlier than October 20, 2000, for the grant of service connection for post-operative residuals of the right shoulder and degenerative joint disease of the left shoulder. The Veteran appealed the Board's September 2012 decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2013 Joint Motion for Partial Remand (JMR), the parties asked the Court to remand the September 2012 Board decision "to the extent that the Board failed to adjudicate Appellant's reasonably raised claims of entitlement to extraschedular consideration for his service-connected right and left shoulder disabilities." See JMR at 1, 5. In an April 2013 Order, the Court granted the JMR. The remainder of the Board's decision, to include the remand directive pertaining to entitlement to TDIU, was left intact. The appeal is REMANDED to the Department of Veterans Affairs Regional Office. VA will notify the appellant if further action is required. REMAND The JMR was premised on the conclusion that the Board had failed to refer the Veteran's initial rating claims for consideration of an extraschedular evaluation. Specifically, the JMR noted that the record establishes the Veteran worked as a truck driver and retired in 2005 due to the fact that pain and weakness in his shoulders impaired his ability to drive. The JMR, citing Brambley v. Principi, 17 Vet. App. 20 (2003) also suggested that the Board "consider whether extraschedular consideration should be remanded in light of the Board's prior remand of Appellant's TDIU claim." See JMR at 4. Thus, the JMR implied that the extraschedular and TDIU issues are intertwined. For these reasons, the RO should refer the case to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of whether an extraschedular rating is warranted for the Veteran's right and left shoulder disabilities at any time during the course of his appeal. Accordingly, the case is REMANDED for the following action: 1. Inform the Veteran of the elements of a claim for an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). 2. Then, refer the claim of entitlement to extraschedular consideration for the Veteran's service-connected shoulder disabilities to the Chief Benefits Director of VA's Compensation and Pension Service for consideration of an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1). 3. Thereafter, readjudicate the extraschedular claim on appeal as well as the TDIU issue. If the benefit sought remains denied, issue a supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. No action is required of the appellant unless he is notified. The appellant 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. All claims 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). _________________________________________________ James L. March 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).