Citation Nr: 1509476 Decision Date: 03/04/15 Archive Date: 04/16/15 DOCKET NO. 06-17 548 ) DATE MAR 04 2015 On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a rating higher than 30 percent for cervical strain with traumatic joint disease and discectomy (disability of the cervical spine) on an extraschedular basis. 2. Entitlement to a total disability rating for compensation based on individual unemployability. REPRESENTATION Veteran represented by: Jonathan Greene. Attorney ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1971 to January 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in December 2004 of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2009, in February 2011, in October 2011, the Board remanded the claim for increase for disability of the cervical spine. In January 2013, the Board remanded the claim for a total disability rating for compensation based on individual unemployability. has not been completed, further action to ensure compliance with the remand directive is required. Stegall v. West, 11 Vet. App. 268 (1998). In a decision in January 2013, the Board granted a schedular 30 percent rating for disability of the cervical spine. The Board denied referral of the claim for increase on an extraschedular basis. On appeal to the United States Court of Appeals for Veterans Claims (Court), in a decision in March 2014, the Court vacated and remanded the Board's decision to address the matter of referral for extraschedular consideration. A decision on referral for extraschedular consideration the claim for increase for disability of the cervical spine is deferred until the claim for a total disability rating for compensation based on individual unemployability is fully developed. - 2 - The claim for a total disability rating for compensation based on individual unemployability is REMANDED to the RO. REMAND On the matter of referral for extraschedular consideration the claim for increase for disability of the cervical spine, the Board is remanding the claim for a total disability rating for compensation based on individual unemployability. As further development of the claim of unemployability may be probative in assessing extraschedular consideration of the claim for increase for a disability of the cervical spine, it would be premature for the Board to now address referral for extraschedular consideration. And a decision on extraschedular consideration is deferred until the development is completed on the claim for a total disability rating for compensation based on individual unemployability. See Brambley v. Principi, 17 Vet. App. 20, 23-24 (2003) (It was premature of the Board to decline extraschedular consideration where the record was significantly incomplete on the issue of employability). On the claim for a total disability rating for compensation based on individual unemployability, in a rating decision in February 2014, the RO denied the claim. While the Veteran has waived VCAA notice and waived the right to have additional evidence considered by the RO, further due process and factual development is still needed. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA social and industrial survey to assess the Veteran's functioning and capacity for employment. - 3 – 2. Afford the Veteran a VA examination by a physiatrist to determine: Whether the Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation. The service-connected disabilities are: right upper extremity radiculopathy, left upper extremity radiculopathy, cervical strain with traumatic degenerative joint disease, headaches, Mumford procedure distal clavicle for dislocation of the right shoulder and traumatic degenerative arthritis of the acromioclavicular joint, scar of the left iliac crest, fracture of the ninth left rib, hemorrhoids, and left iliac crest donor site scar. 3. After the development, adjudicate the claim for a total disability rating for compensation based on individual unemployability. If the benefit sought is denied, furnish the Veteran and his attorney a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). -4- The matter 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. 38 U.S.C.A. §§ 5109B, 7112. George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the Court. 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). - 5 -