Citation Nr: 1539019 Decision Date: 09/11/15 Archive Date: 09/24/15 DOCKET NO. 10-04 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Whether referral for extraschedular consideration is warranted for the Veteran's service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967, and from April 1973 to September 1991. This case initially came to the Board of Veterans' Appeals (Board) on appeal from July 2008 and July 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that, in pertinent part, denied entitlement to increased ratings for lumbar spine, bilateral feet, and left ear hearing loss disabilities, denied service connection for bilateral lower extremity radiculopathy, and found that new and material evidence was not submitted with respect to the claim for service connection for right ear hearing loss. The Veteran testified during a hearing at the RO before the undersigned in December 2011. A transcript of the hearing is of record. In a May 2012 decision, the Board reopened the Veteran's previously denied claim for service connection for right ear hearing loss and remanded the reopened claim, and his claim for a compensable rating for left ear hearing loss to the Agency of Original Jurisdiction (AOJ) for further development. The Board also denied a rating in excess of 20 percent prior to February 3, 2010 for the orthopedic residuals of his lumbar spine disability, and granted a 40 percent rating from that date for the back disability; granted 10 percent ratings for right and left lower extremity radiculopathy; and denied ratings in excess of 10 percent for the Veteran's right and left foot hallux valgus disabilities. In a March 2013 rating decision, the AOJ granted service connection for right ear hearing loss, and assigned a noncompensable disability rating for bilateral hearing loss, effective October 1, 1991. In a September 2013 Joint Motion for Remand, the Veteran and VA General Counsel moved the United States Court of Appeals for Veterans Claims (Court) to vacate that part of the Board's May 2012 decision that denied a rating in excess of 20 percent prior to February 3, 2010 for the orthopedic residuals of lumbar spine disability and granted a 40 percent rating from that date for the back disability; granted 10 percent ratings for right and left lower extremity radiculopathy; and denied ratings in excess of 10 percent for right and left foot hallux valgus. The Joint Motion was premised on a settlement agreement in National Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 725 F.3d 1312 (Fed. Cir. 2013). Pursuant to the settlement agreement, the Board's May 2012 decision was identified by use of search terms as being affected by an invalidated rule relating to the duties of the Veterans Law Judge who conducted the December 2011 Board hearing. There was no apparent finding of error in the Board's actual analysis. Following the Joint Motion and Court Order, the Board sent the Veteran a letter notifying him of an opportunity to receive a new hearing and/or a new decision from the Board. The Veteran responded in October 2013, asking that the Board proceed to immediately readjudicate his case. He did not respond to the Board's December 2013 letter offering him the opportunity to testify at a new hearing before a Veterans Law Judge and receive a new decision. The letter had advised him that if he did not respond within 30 days, the Board would assume that he did not want a new hearing. In April 2014, the Board remanded the Veteran's case to the AOJ for procedural development. In March 2015, the Board (i) denied increased rating in excess of 20 percent for the orthopedic residuals of the lumbar spine disability prior to February 3, 2010, (ii) granted an increased rating of 40 percent, but no more, for the orthopedic residuals of the lumbar spine disability beginning February 3, 2010, (iii) granted a separate 20 percent disability rating for right lower extremity radiculopathy from November 7, 2007 to February 25, 2010, (iv) granted a separate 20 percent disability rating for left lower extremity radiculopathy from November 7, 2007 to February 25, 2010, (v) granted a separate 10 percent disability rating for right lower extremity radiculopathy, effective February 26, 2010, (vi) granted separate 10 percent disability rating for left lower extremity radiculopathy, effective February 26, 2010, (vii) denied an increased disability rating in excess of 10 percent for right foot hallux valgus, (viii) denied an increased disability rating in excess of 10 percent for left foot hallux valgus, and (ix) denied an initial compensable disability rating for bilateral hearing loss. The Board also found that referral for extraschedular consideration was not warranted. The Veteran appealed this decision to the United States Court of Appeals for Veterans Affairs (Court) which, in a July 2015 order granted the parties' Joint Motion, vacating in part the part of the Board's March 2015 decision that denied referral for consideration of a combined extraschedular rating. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The parties to the Joint Motion agreed that the Board provided an inadequate statement of reasons or bases and erred when it failed to consider the collective impact of the Veteran's service-connected disabilities in its extraschedular referral analysis. The parties agree that the Board failed to consider the combined effects of Veteran's service-connected disabilities in its extraschedular referral analysis. In Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). The parties found that, although the Board acknowledged a June 2013 statement in which the Veteran reported that he had lost 50 days of work in the previous year due to his neck, back, and foot disabilities; the Board did not consider referral under Johnson. Under the provisions of 38 C.F.R. § 3.321(b)(1) (2015), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "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). Based on the stipulations in the Joint Motion, referral for extraschedular consideration based on the collective impact of the Veteran's service-connected neck, back, and foot disabilities is warranted. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; rather, such an evaluation, if warranted, is to be assigned by the Director, Compensation and Pension Service. Floyd v. Brown, 9 Vet. App. 88 (1996). Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's appeal to VA's Director, Compensation and Pension Service, or its Under Secretary for Benefits for adjudication of entitlement to an extraschedular rating based on the combined effects of the Veteran back, neck, and foot disabilities pursuant to 38 C.F.R. § 3.321(b). 2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the appeal to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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). _________________________________________________ Mark D. Hindin 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).