Citation Nr: 1513249 Decision Date: 03/27/15 Archive Date: 04/03/15 DOCKET NO. 10-30 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an extraschedular evaluation for adjustment disorder with anxiety and depressed mood. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected disability. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Sara Kravitz, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1979 to October 1982, with additional service in the United States Army Reserves. This matter comes before the Board of Veterans Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. During the course of the appeal, the Board granted a 50 percent initial schedular rating for adjustment disorder with anxiety and depressed mood, but remanded the case in June 2011 for extraschedular consideration of the increased rating claim and the TDIU claim, as will further be discussed below. The issue of an increased schedular rating in excess of 50 percent for service-connected adjustment disorder with anxiety and depressed mood has been raised by the record in a June 2013 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The appeal is REMANDED to the AOJ. VA will notify the appellant if further action is required. REMAND Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. See 38 C.F.R. § 3.321(b) (2014); Thun v. Peake, 22 Vet. App. 111, 114 (2008). However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2014). A TDIU may be assigned when a disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a) (2014). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is currently only service-connected for adjustment disorder evaluated as 50 percent disabling. The Veteran's combined rating, as per 38 C.F.R. § 4.25 (2014), is 50 percent; therefore, he does not satisfy the minimum percentage rating requirements of 38 C.F.R. § 4.16(a) (2014) for a TDIU. However, VA regulations provide that if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b) (2014). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b) (2014). The United States Court of Appeals for Veterans Claims (Court) has held that a TDIU claim may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In this regard, in June 2011, the Board remanded the claims in part to afford the Veteran an examination to determine whether she could not work due to her service-connected disability, and then to readjudicate the claims for an extraschedular increased rating and for extraschedular TDIU, including making a determination whether the claims should be referred to the Director of Compensation and Pension Service for extraschedular consideration. The Veteran was afforded a VA examination in April 2012. The examiner opined that the Veteran's mental health related symptoms of chronic adjustment disorder were at such a significant level that it would make finding suitable employment and providing reliable, consistent work very difficult and could potentially exacerbate Veteran's existing mental health condition. The claims were adjudicated in an April 2012 supplemental statement of the case (SSOC), however, extraschedular consideration of the increased rating claim and TDIU claim were not discussed, and the claim was not referred to the Director of Compensation and Pension before the SSOC was issued. The Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran's claim to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration 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). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the TDIU claim or increased rating claim. Thus, given the April 2012 VA examination that reasonably raises the possibility that the Veteran cannot work due to her service-connected disability, the Board refers the Veteran's claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) (2014). Accordingly, the case is REMANDED for the following actions: 1. Submit the issues of an extraschedular rating for adjustment disorder and TDIU to the Under Secretary for Benefits or Director of Compensation and Pension Service for an extraschedular evaluation under 38 C.F.R. § 4.16(b) (2014). The Veteran's service-connected disability, as well as her employment history, educational and vocational attainment and all other factors having a bearing on her employability (or lack thereof) should be considered. The response from the Under Secretary for Benefits or the Director of Compensation and Pension Service must be included in the claims file. 2. Thereafter, readjudicate the Veteran's extraschedular rating and extraschedular TDIU claims based upon the relevant evidence, to include the response from the Under Secretary for Benefits or the Director of Compensation and Pension Service. If the benefit sought on appeal is not granted, the RO should issue the Veteran and her representative a Supplemental Statement of the Case (SSOC) and provide them an opportunity to respond. 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). 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 2014). _________________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2014).