Citation Nr: 1603555 Decision Date: 02/02/16 Archive Date: 02/11/16 DOCKET NO. 08-05 738 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to a rating in excess of 10 percent for a right wrist disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from February 1984 to February 1988. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Board denied this appeal in a November 2013 decision. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In February 2015, the Court granted a joint motion for partial remand (JMR) of the Veteran and the Secretary of Veterans Affairs (the Parties), vacated the Board's November 2013 decision with regard to the rating assigned for the right wrist disability, and remanded the matter for action consistent with the JMR.. In June 2015, the Board remanded this matter to the agency of original jurisdiction (AOJ). The appeal is again REMANDED to the (AOJ). VA will notify the Veteran if further action is required. REMAND In the February 2015 JMR, the Parties agreed that the Board's determination that referral for extraschedular consideration under 38 C.F.R. § 3.321(b) was not supported by an adequate statement of reasons and bases. In response to that, as well as another agreement by the Parties, the Board remanded the case to the AOJ for additional development in June 2015. In the narrative portion of the June 2015 Remand, the Board stated that after affording the Veteran a VA examination of his right wrist, the AOJ should consider whether his claim warrants referral for consideration of an extraschedular rating. In the section of the Remand ordering development, the Board specified that an examination should be scheduled and the claim then readjudicated on schedular and extraschedular bases. The directed examination was conducted in October 2015. In November 2015, the VA Appeals Management Center (AMC) issued a Supplemental Statement of the Case (SSOC) in which it denied a higher rating for the Veteran's right wrist disability. The SSOC included the text of 38 C.F.R. § 3.321(b)(1), the regulation defining extraschedular disability ratings. It did not otherwise mention an extraschedular rating. Of record is a document with a "receipt date" listed in the Veterans Benefits Management System (the system that stores the paperless claims file) of December 18, 2015. The document is not signed but the heading includes "Appeals Management Center." The document addresses the Veteran's case, and the subject line is "Consideration of Extra-Schedular under 38 C.F.R. § 3.321(b)(1)." The first paragraph inaccurately states that the June 2015 Board Remand "has requested that extra schedular consideration for a right wrist disability currently evaluated as 10 percent disabling be referred to the Under Secretary for Benefits or the Director, Compensation Service." The document also states "[t]he totality of the evidence does support the contention that the Veteran's 10 percent evaluation for ligamentous injury, right wrist residual instability and pain in the anatomical snuff box, major is so exceptional or unusual, as to render the use of the rating schedule standards impractical." It then recommends that the Veteran be granted an additional 10 percent rating under Diagnostic Code 5003, which would be an additional schedular rating, not an extraschedular rating. The December 18, 2015 document is unclear. No additional schedular rating was granted by the AOJ. Nor did the AOJ refer the case for extraschedular consideration. Based on a review of the facts of this case, the Board will assume that the AOJ intended to refer the case for extraschedular consideration but did not do and the Board will therefore remand the claim for referral. Accordingly, the case is REMANDED for the following action: 1. Refer the Veteran's case to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extraschedular rating for his service-connected right wrist disability. 2. Then readjudicate the claim pursuant to the determination by the Under Secretary for Benefits or the Director, Compensation Service and return the case to the Board for appellate consideration. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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). _________________________________________________ JOHN J. CROWLEY 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) (2015).