Citation Nr: 1614208 Decision Date: 04/07/16 Archive Date: 04/25/16 DOCKET NO. 07-35 709 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 10 percent for traumatic arthritis, as the residual of a right wrist fracture. 2. Entitlement to an initial disability rating in excess of 10 percent for right wrist carpal tunnel syndrome, as secondary to a right wrist fracture. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from March 1967 to March 1969. This matter comes before the Board of Veterans' Appeals (Board) from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was previously before the Board in July 2011 and April 2015, when it was remanded for further development. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). REMAND In its April 2015 remand order, the Board noted that, in a May 2012 statement, the Veteran's employer indicated that the Veteran missed work due to his right wrist disabilities. The Board directed the AOJ to send a letter to the Veteran's former employer regarding this issue. The AOJ has not complied with that remand directive. Compliance with a Board remand directive is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268 (1998). As such, a letter must be sent to the Veteran's former employer asking to provide the number of days the Veteran missed from work every month while he was employed, and to provide the reason why the Veteran terminated his employment. In addition, the Veteran has asserted that his right wrist disabilities have worsened since they were last assessed in an August 2013 VA examination. See February 2016 Brief. The Veteran should be scheduled for a new VA examination to determine the current nature and severity of his right wrist disabilities. Accordingly, the case is REMANDED for the following action: 1. Send a letter to the Veteran's (former) employer who provided the May 2012 statement that asserts that the Veteran missed days from work due to his right wrist disability. a) Ask the employer to provide (if possible) the number of days the Veteran missed from work every month due to his right wrist disability during his employment. b) Ask the employer to further clarify the reason(s) for the Veteran's termination of employment with the said employer. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected right wrist disabilities (traumatic arthritis and carpal tunnel syndrome). The examiner must review the claims file, and note that review in the examination report. All opinions proffered must be supported by rationale. Any appropriate testing should be performed, and a copy of any results should be included in the examination report. 3. After the above development has been completed and the employer responds, or is given a reasonable time to respond, consider whether to submit the increased rating claims and TDIU to the Director of Compensation and Pension Service for an extra-schedular evaluation under both 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b). An extraschedular rating is based on the fact that the scheduler ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's service-connected disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, TDIU on an extraschedular basis merely requires a determination that a particular Veteran is rendered unable to secure or follow substantially gainful occupation by reason of service-connected disabilities. See VAOPGCPREC 6-96. Any extra-schedular evaluation must address both 38 C.F.R. 4.16(b) and 38 C.F.R. § 3.321(b). The Veteran's service-connected disabilities, his employment history, educational vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be considered. 4. Then, readjudicate the Veteran's claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, furnish a supplemental statement of the case and afford the appropriate response time. Then, return the case 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). ______________________________________________ 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).