Citation Nr: 1335129 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 06-17 710A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an evaluation in excess of 30 percent for common variable immunodeficiency, diagnosed as hypogammaglobulinemia for the period prior to December 29, 2008. 2. Entitlement to an evaluation in excess of 30 percent for common variable immunodeficiency, diagnosed as hypogammaglobulinemia for the period since December 29, 2008. 3. Entitlement to an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008. 4. Entitlement to a total rating for individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Chisholm, Chisholm & Kilpatrick, LLC WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bernard T. DoMinh, Counsel INTRODUCTION The Veteran served on active duty from August 1976 to March 1978. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA) which, inter alia, denied the Veteran's claims for an increased rating in excess of 30 percent for common variable immunodeficiency (CVID), diagnosed as hypogammaglobulinemia, and an increased rating in excess of 10 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis. The Veteran's claim for a rating increase was filed on July 15, 2004. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). During the course of this appeal, the Board remanded the case in June 2009 and April 2011 to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional evidentiary and procedural development. In September 2011, the Veteran, accompanied by an agent from his former representative, Disabled American Veterans, appeared at the RO before the undersigned traveling Veterans Law Judge to present evidence and oral testimony in support of his appeal. A transcript of this hearing was obtained and associated with the Veteran's claims file for the Board's review and consideration. In a January 2012 appellate decision, the Board, inter alia, denied the Veteran's claim for a rating in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period prior to December 29, 2008, and his claim for a rating in excess of 10 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period prior to December 29, 2008. In the same action, the Board remanded the issues of entitlement to an increased rating in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period after December 29, 2008, and entitlement to an increased rating in excess of 10 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period after December 29, 2008, to the RO/AMC for further evidentiary and procedural development. The Veteran appealed the denial of a rating in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period prior to December 29, 2008 to the Court. In August 2012, the Court granted a joint motion of the appellant and the Secretary of VA to vacate only that part of the January 2012 Board decision denying a rating in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period prior to December 29, 2008, and remand the matter for further development and appellate adjudication consistent with the joint motion of the parties. The Court further determined that as the record reasonably raised the issue of the Veteran's individual employability, a TDIU claim was part and parcel to the increased rating claims on appellate status and the Board was required to address this aspect of the Veteran's increased rating claim. [See Rice v. Shinseki, 22 Vet. App. 447 (2009): a TDIU claim explicitly raised or implicitly raised by the record during the pendency of an increased rating claim is part and parcel to the increased rating claim and is not a separate "freestanding" claim.] During the course of the appeal, a March 2013 RO/AMC rating decision granted the Veteran a 30 percent evaluation for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis effective December 29, 2008. Thusly, the issues that are now in appellate status are entitlement to an evaluation in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period prior to December 29, 2008; entitlement to an evaluation in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period since December 29, 2008; entitlement to an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008; and entitlement to a TDIU. For the reasons discussed below, the issues of entitlement to an evaluation in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period since December 29, 2008; an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008; a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) since December 29, 2008, and on an extraschedular basis under 38 C.F.R. § 4.16(b), for the entire period on appeal (prior to and since December 29, 2008), are REMANDED to the RO. VA will notify the Veteran and his representative if any further action is required on their part. FINDINGS OF FACT 1. For the period prior to December 29, 2008, CVID (diagnosed as hypogammaglobulinemia) does not result in hemoglobin 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months). 2. For the period prior to December 29, 2008, service connection was in effect for CVID (diagnosed as hypogammaglobulinemia), rated as 30 percent disabling, and bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis, rated as 10 percent disabling, which produce a combined rating of 40 percent. CONCLUSIONS OF LAW 1. For the period prior to December 29, 2008, the criteria for a disability rating in excess of 30 percent for CVID, diagnosed as hypogammaglobulinemia, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.117, Diagnostic Code 7700 (2013). 2. The criteria for a TDIU on a schedular basis for the period prior to December 29, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.16(a) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect only to the claim decided herein for a rating in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period from July 15, 2004 to December 29, 2008, to include a TDIU, the Board notes at the outset that, in accordance with the VCAA, VA has an obligation to notify claimants what information or evidence is needed in order to substantiate a claim, as well as a duty to assist claimants by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Generally, the notice requirements of a claim have five elements: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must also: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). 38 C.F.R. § 3.159(b) has since been revised and the requirement that VA request that the claimant provide any evidence in his possession that pertains to the claim was removed from the regulation. The current issue that will be adjudicated on the merits stems from an increased rating claim for CVID (diagnosed as hypogammaglobulinemia), which was filed on July 15, 2004. (Prior to VA's receipt of this application, the last rating decision addressing the appropriate evaluation for this immunodeficiency disease was rendered in December 2001. Notice of this decision was furnished in December 2001, but the Veteran did not timely appeal it, nor did he submit evidence that was new and material to CVID that demonstrated a worsening of this disease at any time prior to the submission of his July 2004 application to reopen his claim. The December 2001 rating decision is therefore final. See 38 C.F.R. §§ 3.156(b), 3.160(c) (2013); Bond v. Shinseki, 659 F.3d 1362 (2011); King v. Shinseki, 23 Vet. App. 464, 467 (2010).) Pursuant to the holding of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU claim is deemed to be part and parcel to a claim for a rating increase. A VCAA notice letter was dispatched to the Veteran in March 2006, during the pendency of the claim but after the February 2005 rating decision now on appeal. This letter addressed the increased rating issue on appeal and satisfied the above-described mandates, as well as the requirements that the Veteran be informed of how VA calculates degree of disability and assigns an effective date for the disability, as prescribed in Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although a timing of notice defect exists inasmuch that fully compliant notice of the VCAA did not precede the initial adjudication of the Veteran's increased rating claim adjudicated herein (and, by extension, the TDIU claim), the late notice was followed by a subsequent readjudication, most recently in this case in a September 2009 supplemental statement of the case, thereby curing the defective notice error. See 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 a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). VA also has a duty to assist the Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the Veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence with regard to the increased rating (and TDIU) claim adjudicated herein for the period from July 15, 2004 to December 29, 2008. As previously stated, the Court vacated that part of a January 2012 Board decision denying an increased rating above 30 percent for CVID for the period from July 15, 2004 to December 29, 2008, remanding the issue to the Board for readjudication to include discussion of the probative value of a September 2001 Social Security Administration (SSA) determination on this claim. As will be discussed below, the other issues presently in appellate status, including entitlement to an extraschedular TDIU under 38 C.F.R. § 4.16(b), must be remanded to the RO/AMC for further procedural development. Therefore, the matter adjudicated on the merits in this appeal is specific only to the issue of entitlement to a rating increase above 30 percent for CVID and a schedular TDIU under 38 C.F.R. § 4.16(a) prior to December 29, 2008, and the Board will restrict its focus only to evidence pertinent to this time period. In this regard, the claims file includes medical records used by the SSA in its September 2001 adjudication of the Veteran's SSA disability claim, VA medical examination reports and treatment records relevant to the Veteran's immunodeficiency disease for the period prior to December 29, 2008, and an April 2013 opinion from a private vocational consultant (accompanied by the Veteran's waiver of first review of the 2013 opinion by the agency of original jurisdiction), which addressed the impact of the Veteran's service-connected disabilities on his employability since 2000. The Board has also reviewed the Veteran's claims file as it appears on the VBMS and Virtual VA electronic information databases for any additional pertinent medical records. The evidence is deemed to be sufficiently developed to allow the Board to rate the CVID (diagnosed as hypogammaglobulinemia), including to consider the applicability of a staged rating, for the period from July 15, 2003 (i.e., one year prior to the date of receipt of the Veteran's claim for a rating increase). See 38 C.F.R. § 3.400(o)(2) (2013); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has reviewed the aforementioned VA examination reports and notes that the Veteran's claims file was reviewed by the VA clinicians who performed them, and that these examiners provided adequate discussion of their clinical observations and rationales to support their individual findings and conclusions within the context of the Veteran's pertinent clinical history as contained within his claims file. The examinations are therefore collectively deemed to be adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Veteran was provided with the opportunity to present oral testimony in support of his claim before the undersigned Veterans Law Judge in a September 2011 videoconference hearing. At the time of the hearing, the Veteran was accompanied by an agent from his then-representative, Disabled American Veterans, and had the benefit of his advice and counsel. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Decision Review Officer or Veterans Law Judge who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) explaining fully the issues and (2) discussing the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). At the September 2011 hearing, the presiding Veterans Law Judge's questions and the Veteran's oral testimony focused on the elements necessary to substantiate, inter alia, the Veteran's claim for an increased rating for his immunodeficiency disease (to include a TDIU) prior to December 29, 2008. See transcript of September 30, 2011 hearing. Thus, the Board finds that the Veterans Law Judge presiding over the September 2011 hearing has substantially fulfilled his obligations as required under 38 C.F.R. § 3.103(c)(2). Bryant, supra. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran in the evidentiary development of the claims decided herein, and thus no additional assistance or notification is required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board will therefore proceed with the adjudication of this appeal. The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Because this appeal has been ongoing for a lengthy period of time, and because the level of a veteran's disability may fluctuate over time, the VA is required to consider the level of the Veteran's impairment throughout the entire period. In this respect, staged ratings are a sensible mechanism for allowing the assignment of the most precise disability rating-one that accounts for the possible dynamic nature of a disability while the claim works its way through the adjudication process. O'Connell v. Nicholson, 21 Vet. App. 89 (2007). By history, in a July 1978 rating decision, VA awarded the Veteran service connection and a 30 percent rating for CVID. At the time of the original award of compensation, VA had noted that the Veteran entered active duty with a pre-service immunodeficiency but that the clinical evidence demonstrated that this disease underwent a permanent worsening beyond its normal progression as a result of active military service. Treatment of his CVID in service included immunoglobulin replacement therapy. Service connection for CVID was thusly awarded on the basis of aggravation by service of a pre-existing disease. The 30 percent rating has remained in effect since the initial award of VA compensation. The Veteran's claims file indicates that prior to the current claim, the Veteran had filed several earlier claims for a rating increase in excess of 30 percent for CVID, which were all denied, most recently in a December 2001 final rating action that preceded the present claim. As previously noted, the current claim for a rating increase for CVID stems from the Veteran's application to reopen his claim, which was received by VA on July 15, 2004. Per 38 C.F.R. § 3.400(o)(2), an effective date for an increased rating award is the date of claim, or the date entitlement arose up to one year prior to the date of claim if it is factually ascertainable that the disability at issue underwent an increase in severity. Therefore, the scope of the Board's review will encompass all evidence pertinent to the period from July 15, 2003 to December 29, 2008. As a TDIU claim is deemed to be part and parcel to this rating increase claim, and as the September 2001 SSA determination and the April 2013 assessment of the private vocational consultant directly address the Veteran's employability for the aforementioned time period, this evidence will also be considered in the Board's adjudication of the issue. As relevant, the Veteran's diagnosed disability, hypogammaglobulinemia is not specifically listed in the VA rating schedule. VA regulations provide, however, that when an unlisted condition is encountered it will be permissible to rate it under a closely related disease or injury in which not only the function affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (2013). As noted, CVID is rated under 38 C.F.R. § 4.117, Diagnostic Code 7912-7700. Diagnostic Code 7912 pertains to pluriglandular syndrome and the instructions state that the condition is to be rated based on the major manifestations. Diagnostic Code 7700 provides ratings for hypochromic-microcytic and megaloblastic anemia, such as iron deficiency and pernicious anemia. It provides ratings as follows: Hemoglobin 10gm/100 ml or less, asymptomatic, is rated noncompensably (0 percent) disabling. Hemoglobin 10gm/100ml or less with findings such as weakness, easy fatigability or headaches, is rated 10 percent disabling. Hemoglobin 8gm/100ml or less, with findings such as weakness, easy fatigability, headaches, lightheadedness, or shortness of breath, is rated 30 percent disabling. Hemoglobin 7gm/100ml or less, with findings such as dyspnea on mild exertion, cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope (three episodes in the last six months), is rated 70 percent disabling. Hemoglobin 5gm/100ml or less, with findings such as high output congestive heart failure or dyspnea at rest, is rated 100 percent disabling. A Note to Diagnostic Code 7700 provides that complications of pernicious anemia, such as dementia or peripheral neuropathy, are to be rated separately. 38 C.F.R. § 4.117 (2013). The Board notes that "hemoglobin" is "the red oxygen-carrying pigment of erythrocytes, formed by developing erythrocytes in bone marrow." Dorland's Illustrated Medical Dictionary at 850 (31st. Ed. 2007) (hereinafter Dorland's). In addition, "anemia" is defined as "a reduction below normal in the concentration of erythrocytes or hemoglobin in the blood." Dorland's at 79. Here, the Board has reviewed the evidence of record for the one year period prior to the initiation of the current claim in July 2004 through December 2008 but finds that the preponderance of the evidence is against the claim for a rating in excess of 30 percent. First, the record does not include evidence of anemia with hemoglobin 7gm/100ml or less. Rather, blood testing in December 2003 revealed hemoglobin of 13.7. Blood testing in January 2004 revealed hemoglobin of 15.7 g/dL. Finally, testing during the VA examination in January 2005 revealed hemoglobin of 15.4. A VA hospital discharge examination in December 2008 stated that the Veteran's CBC (complete blood count) was within normal limits. Clearly, these blood test results do not approximate the criteria for the next higher rating of 70 percent rating under Diagnostic Code 7700. As regards his subjective symptoms, during the VA examination in January 2005, the Veteran reported frequent pneumonia, chest pain, night sweats, general achiness and headaches. He also stated that he received monthly intravenous immunoglobulin. However, the examiner who reviewed the Veteran's medical record noted that the last treatment with IGG was in 2002 and that the Veteran had not shown up for further treatment. These subjective symptoms, however, are not sufficient to support the claim for an increased rating in the absence of the appropriate hemoglobin levels. Moreover, while the examiner noted dyspnea upon moderate exertion, the VA examiner did not find evidence of cardiomegaly, tachycardia (100 to 120 beats per minute) or syncope. The Board further notes that the clinical record does reveal that the Veteran had low immunoglobulins. The Board has considered whether any other potentially applicable Diagnostic Code would support the assignment of a higher rating, but can find none. In this respect, the rating criteria for human immunodeficiency virus (HIV)-related illness under 38 C.F.R. § 4.88b, Diagnostic Code 6351 (2013) provide for a 60 percent rating for refractory constitutional symptoms, diarrhea, and pathological weight loss, or; minimum rating following development of AIDS-related opportunistic infection or neoplasm. The evidence shows, however, that the Veteran had gained weight and that he did not have diarrhea or refractory constitutional symptoms. As such, his hypoimmunoglobulin disability may not be rated under Diagnostic Code 6351. The Board has also considered whether other Diagnostic Code applicable to disability of the hemic and lymphatic systems would support the assignment of an increased rating. In this respect, ratings in excess of 30 percent are permitted under Diagnostic Codes 7702-7716. However, the Veteran does not have a disability comparable to agranulocytosis (Diagnostic Code 7702), leukemia (Diagnostic Code 7703), polycythemia vera (Diagnostic Code 7704), thrombocytopenia (Diagnostic Code 7705), a spleen disability (Diagnostic Code 7706-7707), Hodgkin's disease (Diagnostic Code 7709), adenitis (Diagnostic Code 7710), sickle cell anemia (Diagnostic Code 7714), non-Hodgkin's lymphoma (Diagnostic Code 7715), or aplastic anemia (Diagnostic Code 7716). Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2013). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116. The schedular evaluation in this case is adequate. A rating in excess of that assigned is provided for certain manifestations of the service-connected disorder but the probative evidence reflects that those manifestations are not present in this case. Additionally, even though rated by analogy, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disability. Although, as will be discussed below, the evidence indicates that the Veteran's service-connected disabilities collectively may render him unable to secure or follow a substantially gainful occupation, the objective evidence does not indicate that his CVID as an individual service-connected disability presents marked interference with his employment capacity so as to place his level of impairment outside of the rating schedule. Therefore, the Veteran's disability picture is deemed to be adequately contemplated by the rating schedule and no extraschedular referral is required. At no time during the pendency of this claim has the disability been more or less disabling than as currently rated. The claim for a rating above 30 percent for CVID (diagnosed as hypogammaglobulinemia) is therefore denied. Because the evidence in this case is not approximately balanced with respect to this matter, the benefit-of-the-doubt doctrine does not apply, and the claim for an increase rating must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As the Veteran contends that his service-connected disabilities prevent him from working, a TDIU claim is reasonably raised by the record and, in any case, is deemed to be part and parcel to his claim for a rating increase for his service-connected disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on individual unemployability when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides." In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a Veteran is entitled to TDIU is whether his service-connected disabilities alone are of sufficient severity to produce unemployability. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a) (2013). During the entirety of the period prior to December 29, 2008, the Veteran has been service-connected only for CVID (diagnosed as hypogammaglobulinemia), rated as 30 percent disabling, and bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis, rated as 10 percent disabling. In accordance with 38 C.F.R. § 4.25, the Veteran's maximum combined service-connected disability rating at any time prior to December 29, 2008 is 40 percent. Therefore, for the period prior to December 29, 2008, the Veteran has not met the minimum rating requirement for eligibility for a TDIU under 38 C.F.R. § 4.16(a). A TDIU under § 4.16(a) cannot be allowed as the criteria have not been met. ORDER An evaluation in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) prior to December 29, 2008, is denied. A schedular TDIU under 38 C.F.R. § 4.16(a) prior to December 29, 2008 is denied. REMAND For the reasons set forth below, the following issues are REMANDED to the RO for additional development: entitlement to an evaluation in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period since December 29, 2008; an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008; a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) since December 29, 2008, and on an extraschedular basis under 38 C.F.R. § 4.16(b), for the entire period on appeal (prior to and since December 29, 2008). A January 2012 Board remand ordered additional evidentiary development followed by readjudication of the claims and issuance of a supplemental statement of the case to the appellant and his representative thereafter. The Court has held in the case of Stegall v. West, 11 Vet. App. 268 (1998), that a remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary a concomitant duty to ensure compliance with the terms of such an order. The Court further clarified in Dyment v. West, 13 Vet. App. 141 (1999), that exact compliance with the directives of a Board remand are not necessarily required if the purpose of the remand has been met, such that the RO's post-remand development is in substantial compliance with the Board's remand instructions. With regard to the claim on appeal for a rating increase above 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period after December 29, 2008, the Board notes that in its remand of January 2012, it instructed the RO/AMC to develop the evidence and obtain all pertinent VA clinical evidence since December 2008, and thereafter readjudicate the claim for a rating in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period after December 29, 2008. The Board observes that VA and private medical records up to April 2013 have been obtained and associated with the claims file. However, the Board's review of the Veteran's claims folder, including the electronic claims file database on VBMS and Virtual VA, shows that the agency of original jurisdiction did not, at any time since the January 2012 Board remand, readjudicate the issue of entitlement to a rating increase above 30 percent for CVID (diagnosed as hypogammaglobulinemia) for the period after December 29, 2008. This procedural omission is obviously not in compliance with the instructions of the Board in its January 2012 remand. Therefore, to ensure due process and to avoid prejudice, this matter must be remanded to the RO/AMC for appropriate adjudicative action. With regard to the issue of entitlement to an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008, the Board notes that although the RO/AMC complied with the instructions of the January 2012 Board remand in developing the evidence pertinent to the claim and thereafter readjudicating it in a March 2013 rating decision, it erred by furnishing notice of the March 2013 decision to the Veteran's former representative, Disabled American Veterans, who is no longer the Veteran's appointed power of attorney in the present claim. The Board further observes that a supplemental statement of the case (SSOC) addressing this issue was not provided to the appellant or his representative, in accordance with 38 C.F.R. § 19.31, 19.37. The Board notes that as of September 2012, the Veteran has appointed the private law firm of Chisholm, Chisholm & Kilpatrick, LLC, to be his representative in the present claim. (See VA Form 21-22a, signed by the Veteran and dated September 4, 2012.) There is no indication in the hardcopy of the claims file or in the VBMS or Virtual VA electronic databases that the Veteran's private attorney has been provided with a copy of the March 2013 rating decision or a SSOC with regard to the issue of entitlement to an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008. Therefore, to ensure procedural due process, this issue must be remanded to the RO/AMC so that it may furnish the Veteran and his representative with appropriate notice of the rating actions taken with regard to this claim since the January 2012 Board remand. As discussed above, the Board denied the claim for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) for the period prior to December 29, 2008. However, TDIU on a schedular basis under 38 C.F.R. § 4.16(a) since December 29, 2008, and on an extraschedular basis under 38 C.F.R. § 4.16(b), for the entire period on appeal (prior to and since December 29, 2008), remain on appeal and must be remanded. Such issued are inextricably intertwined with the pending issues of entitlement to increased ratings for CVID (diagnosed as hypogammaglobulinemia) and bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008, and are held in abeyance pending resolution of the procedural deficits discussed above. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, and consideration is given to the veteran's background including his or her employment and educational history. See 38 C.F.R. § 4.16(b) (2013). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991).When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3 (2013). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b) (2013), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. This means that the Board should take into account the veteran's specific circumstances including his disability, education, and employment history when determining if he is unable to work. As previously stated, the Board itself cannot assign an extraschedular rating in the first instance. However, it must specifically adjudicate whether to refer a case to the Director of Compensation and Pension (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). On remand, the RO must consider the question of whether referral to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating pursuant to 38 C.F.R. §4.16(b), at least for the period prior to December 29, 2008, and perhaps thereafter depending on the outcome of the increased rating claims on remand. The September 2001 decision of the SSA reflects that the Veteran possessed a high school education with some college credits but no college degree. He served as an offset lithographic printer operator during active duty but has since been employed in unskilled labor positions, most recently as a housekeeping aide. The SSA determined that the Veteran had not engaged in substantially gainful activity since October 1999 and that he lacked the functional capacity to perform a full range of sedentary work due to chronic obstructive pulmonary disease, hypogammaglobulinemia, schizoaffective disorder, and major depressive disorder with psychotic features. The Veteran has also recently submitted an opinion dated in April 2013 from E. J. C., M.A., CCM, CDMS, who identified himself as a private vocational consultant. Mr. E. J. C. stated, in pertinent part, that his review of the Veteran's records shows that he possessed a high school diploma with one year of college in mechanical technology and was a state-certified printing press operator, which was his vocation from 1984 to 1996, thereafter working part-time as a janitor and laundry room attendant at a VA hospital until October 2000. Mr. E. J. C., in his capacity as a vocational counselor, presented the following opinion: I have reviewed the [Veteran's] entire claims file, interviewed the Veteran, and considered all of his other conditions and disabilities, both service-connected and non-service-connected, [and] it is my opinion within a reasonable degree of vocational certainty that [his] service-connected immunodeficiency and bronchiectasis have resulted in his inability to secure or follow a substantially gainful occupation since at least October 2000. In view of the foregoing evidence, in particular the September 2001 SSA decision and the April 2013 opinion of vocational consultant E. J. C., the evidence indicates that the Veteran may be unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities pursuant to 38 C.F.R. §4.16(b) at least for the period prior to December 29, 2008, and perhaps thereafter. As this remand includes the increased rating claims on appeal, it remains unclear which TDIU provision will apply from December 29, 2008 - schedular under 38 C.F.R. §4.16(a) or extraschedular under 38 C.F.R. §4.16(b). Either way, the SSA decision and vocational consultant opinion, referral to the Director of the VA Compensation and Pension Service for consideration of an extraschedular TDIU appears warranted. Accordingly, the case is REMANDED to the RO for the following action: 1. Obtain and associate with the record any new medical evidence not already of record from VA or private sources as may be reasonably identified by the Veteran 2. Readjudicate the claim for an evaluation in excess of 30 percent for CVID (diagnosed as hypogammaglobulinemia) since December 29, 2008, considering all legal authority and all pertinent evidence added to the record. If the maximum benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative, Chisholm, Chisholm & Kilpatrick, LLC, an appropriate supplemental statement of the case (to include consideration of any evidence received since the September 2009 supplemental statement of the case) and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 3. Furnish to the Veteran and his representative, Chisholm, Chisholm & Kilpatrick, LLC, an appropriate supplemental statement of the case (to include consideration of any evidence received since the September 2009 supplemental statement of the case) with regard to the issue of entitlement to an evaluation in excess of 30 percent for bronchiectasis with vasomotor rhinitis and history of maxillary sinusitis for the period since December 29, 2008. This should also include appropriate notice of the agency of original jurisdiction's recent rating decision of March 2013. The Veteran and his representative should be afforded the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. 4. Undertake the appropriate development and action to readjudicate TDIU on a schedular basis under 38 C.F.R. § 4.16(a) since December 29, 2008, and on an extraschedular basis under 38 C.F.R. § 4.16(b), for the entire period on appeal (prior to and since December 29, 2008). Based upon the any information obtained on remand, the RO shall consider whether referral to the Director of the VA Compensation and Pension Service for consideration of an extraschedular TDIU is warranted under 38 C.F.R. § 4.16(b) for the entire period on appeal, if necessary and as appropriate. If TDIU benefits remain denied, the RO must furnish to the Veteran and his representative, Chisholm, Chisholm & Kilpatrick, LLC, an appropriate supplemental statement of the case. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The RO/AMC is respectfully advised that a remand by the Board confers on a veteran or other claimant the right to VA compliance with the remand order and imposes on the Secretary of VA a concomitant duty to ensure compliance with the terms of such an order. Stegall v. West, 11 Vet. App. 268 (1998). 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). ______________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs