Citation Nr: 1633490 Decision Date: 08/24/16 Archive Date: 08/31/16 DOCKET NO. 00-00 517 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an increased initial disability rating for status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, currently rated 60 percent disabling, based on extra-schedular consideration under 38 C.F.R. § 3.321(b). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 1, 2004, based on extra-schedular consideration under 38 C.F.R. § 4.16(b). REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from April 1971 to August 1973. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA), Regional Office (RO). In September 2006, the Veteran testified at a video conference hearing over which the undersigned Veterans Law Judge presided. A transcript of that hearing has been associated with the claims file. In a January 2008 decision, the Board denied entitlement to increased disability ratings for right knee disability for the period prior to July 18, 2003; for the period July 18, 2003, to September 12, 2003; and, from September 12, 2003. The Veteran filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). Per a Joint Motion for Remand and August 2009 Court Order, the decision was vacated and remanded for further development consistent with the Joint Motion for Remand. This matter then returned to the Board in October 2010 at which time it was remanded for additional development consistent with the Joint Motion for Remand. The case was returned to the Board in May 2013, at which time, in pertinent part, the issues as captioned above were denied and/or dismissed. The Veteran filed a timely appeal to the Court. Per a Joint Motion for Remand and a February 2014 Court Order, the decision was vacated and remanded for further development consistent with the Joint Motion for Remand. In October 2014, the Board remanded the case for additional development consistent with the Joint Motion for Remand. The case is now returned to the Board. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. All documents in such file have been considered in adjudicating this case. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND In December 2014, the Board referred the appeal to the Director of Compensation to determine if the Veteran was entitled to an extra-schedular rating for any single service-connected disability or due to the collective impact of all service-connected disabilities. The Director of Compensation was to consider the impact of the multiple service-connected disabilities taken together in determining whether the Veteran was entitled to an increased disability rating and/or a TDIU on an extra-schedular basis. In June 2015, the Director of Compensation identified various VA examination reports of record and concluded, in pertinent part, as follows: The record presents no evidence of an exceptional or unusual disability picture, such as, marked interference or frequent periods of hospitalization that would support an increased evaluation, in excess of 60 percent, for the service-connected right knee disability or, in excess of 10 percent, for the service-connected degenerative disc disease of L5-S1. The evidence also reveals that on a collective basis the impact of the service-connected right knee and degenerative disc disease at L5-S1disabilities presents no evidence of an exceptional or unusual disability picture, such as, marked interference or frequent periods of hospitalization that would render application of the current rating schedular criteria inadequate. Medical evidence also shows that the service-connected disabilities do not render the Veteran unable to secure and follow substantially gainful employment. Entitlement to an increased evaluation, in excess of 60 percent, for the status-post injury, medial meniscectomy, and residuals of arthroplasty of the right knee, and in excess of 10 percent for the degenerative disc disease at L5-S1, or collectively, on an extra-schedular basis, is denied. Entitlement to TDIU, on an extra-schedular basis, prior to November 1, 2004, due to the service-connected disabilities is also denied. In correspondence received in March 2016, the Veteran's representative asserted that the Director of Compensation did not provide adequate reasons for the decision, to include a summary of the evidence considered. Specifically, the Veteran's representative argued that the Director of Compensation concluded that the record presented no evidence of an exceptional or unusual disability picture sufficient to justify an extra-schedular rating by failing to consider evidence and arguments submitted by the Veteran in July 2014. In reviewing the decision of the Director of Compensation and the evidence of record, the Board finds that the opinion is not adequate for a determination. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). (Director's decision must have reasons and bases so that the Board may dutifully review the decision in accordance with the evidence of record and the requirements of 38 C.F.R. § 3.321). The Board finds that at this juncture, the case should be referred back to the Director of Compensation for an addendum opinion with respect to the collective impact of the Veteran's service-connected disabilities in deciding whether an increased disability rating and/or a TDIU on an extra-schedular basis is warranted. In doing so, the Director of Compensation must consider all of the evidence of record, both favorable and unfavorable, to include the evidence and arguments submitted by the Veteran in July 2014. Accordingly, the case is REMANDED for the following action: The AOJ shall consider all of the Veteran's service-connected disabilities and refer the Veteran's claims file to the Director of Compensation to determine if the Veteran is entitled to an extra-schedular rating for any single service-connected disability or due to the collective impact of all service-connected disabilities. The Director of Compensation shall consider the impact of the Veteran's multiple service-connected disabilities taken together in determining that the disability picture in deciding whether the Veteran is entitled to an increased disability rating and/or a TDIU on an extra-schedular basis. In doing so, the Director of Compensation must consider all of the evidence of record, both favorable and unfavorable, to include the evidence and arguments submitted by the Veteran in July 2014. If any issue on appeal remains denied, the AOJ shall provide the Veteran and his representative with a Supplemental Statement of the Case. An appropriate period of time must be allowed for response before the case is returned to the Board. Thereafter, if appropriate, the case is to be returned to the Board, following applicable appellate procedure. The Veteran need take no action until he is so informed. He 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). The purposes of this remand are to obtain additional information and comply with all due process considerations. No inference should be drawn regarding the final disposition of this claim as a result of this action. 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). _________________________________________________ THOMAS J. DANNAHER 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).