Citation Nr: 1421995	
Decision Date: 05/15/14    Archive Date: 05/29/14

DOCKET NO.  08-18 161	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1. Entitlement to a total rating based upon individual unemployability by reason of service-connected disability (TDIU), on an extraschedular basis, under the provisions of 38 C.F.R. § 4.16(b).  

2. Entitlement to an extraschedular rating in excess of 40 percent for residuals of fracture of the left navicular with nonunion.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Nigam, Counsel


INTRODUCTION

The Veteran served on active military service from March 1970 to February 1972, to include a period of active duty for training (ACDUTRA) from June 1970 to December 1970.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

In March 2012, the Board, inter alia, granted a 40 percent evaluation for the residuals of fracture of the left navicular with nonunion; and remanded the claims for entitlement to an extraschedular rating in excess of 40 percent for residuals of fracture of the left navicular with nonunion and for a TDIU rating for additional development.  

In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence.  No additional, pertinent evidence has been added to the record.  

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.


REMAND

In the March 2012 remand directive, the Board directed that the Veteran's claims be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for extraschedular rating consideration for residuals of fracture of the left navicular with nonunion, and for extraschedular rating consideration for a TDIU.  Although a memorandum was produced in November 2012 entitled "Consideration for extraschedular entitlement to individual unemployability," which included an assessment of the Veteran's claim for TDIU on an extraschedular basis, this review was performed by a Decision Review Officer (DRO), and was approved by a Veterans Center Service Manager (VCSM).  Thus, the case still requires review by the Under Secretary for Benefits or the Director of Compensation and Pension Service.  

Accordingly, the case is REMANDED for the following action:

1. After undertaking any additionally indicated development, the Veteran's claims for a higher rating and a total rating based upon unemployability as a result of his service-connected disability must be referred to the Under Secretary for Benefits or the Director of Compensation and Pension Service for extraschedular rating consideration for (a) a rating in excess of 40 percent for residuals of fracture of the left navicular with nonunion and (b) for extraschedular rating consideration for a TDIU.  

2. Thereafter, consider all of the evidence of record and readjudicate the claims for extraschedular ratings.  If the benefit sought is not granted, issue a supplemental statement of the case and allow the Veteran and his representative an opportunity to respond.  

The Veteran has the right to submit additional evidence and argument on the 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. 2013).  



_________________________________________________
S. L. Kennedy
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) (2013).