Citation Nr: 18143553 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 15-33 600 DATE: October 19, 2018 REMANDED Entitlement to a rating in excess of 40 percent for chronic back pain with history of spondylolisthesis of L5-S1, bulging disc space L4-L5 is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to a rating in excess of 10 percent for vasomotor, allergic rhinitis (claimed as sinusitis) is remanded. REASONS FOR REMAND The Veteran served on activity duty from September 1985 to October 1992. In July 2017, the Board denied claims for entitlement to increased ratings for rhinitis, for residuals of an injury to the right fourth and fifth metacarpals and for the Veteran’s chronic back pain with history of spondylolisthesis. In a subsequent November 2017 decision, the Board denied a claim to reopen entitlement to service connection for a right ankle disability. Claims for entitlement to service connection for hypertension and for a bilateral knee disability were remanded for further development at that time. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a February 2018 Joint Motion for Partial Remand (JMPR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate, in part, the July 2017 decision to the extent that it denied entitlement to an increased rating for the Veteran’s chronic back pain with a history of spondylolisthesis. Additionally, it was essentially noted that the Veteran had raised a claim for TDIU as part and parcel of his increased rating claim and this issue should have been considered on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). The development as to the issues of entitlement to service connection for hypertension and for a bilateral knee disability ordered in the November 2017 BVA Remand has not been completed. Therefore, those issues will not be addressed at this time and will be the subject of a later decision. Finally, the Board notes that the claim for entitlement to a rating in excess of 10 percent for vasomotor, allergic rhinitis (claimed as sinusitis) has been included in the appeal pursuant to Manlincon v. West, 12 Vet. App. 238 (1998), and will be addressed in the remand below. 1. Entitlement to a rating in excess of 40 percent for chronic back pain with history of spondyloliosthesis of L5-S1, bulging disc space L4-L5 is remanded. The Veteran was last afforded a VA examination of his back in November 2014. The evidence of record indicates that his disability may have worsened since his last VA examination. The Board finds that he should be afforded a new examination in order to determine the current nature and severity of this service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to TDIU is remanded. Total disability ratings for compensation based on individual unemployability may be assigned when the combined schedular rating for the service-connected disabilities is less than 100 percent and when it is found that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age, provided that, if there is only one such disability, this disability is ratable at 60 percent or more, or, if there are two or more disabilities, there is at least one disability ratable at 40 percent or more and additional disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. If the above percentages are not met, the Veteran’s claim may still be referred to the Director, Compensation Service, for an extraschedular rating, when the evidence of record shows that Veteran is “unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.” 38 C.F.R. § 4.16(b). At this juncture, the Veteran fails to meet the criteria for a schedular TDIU. Nevertheless, the evidence of record indicates that he may be unemployable due to his service-connected disabilities. Here, the Board finds that, based on evidence including a July 2018 Employability Evaluation and May 2016 Expert Independent Medical Review, the Veteran has provided sufficient evidence to warrant referral of his TDIU claim to the Director of Compensation Service for extraschedular consideration. The authority to assign extraschedular ratings has been specifically delegated to the Under Secretary for Benefits and the Director of the Compensation Service, and not the Board, in the first instance. Therefore, the correct course of action for the Board, where it finds that entitlement to an extraschedular evaluation may be present, is to raise the issue and remand it for the proper procedural actions outlined in 38 C.F.R. § 4.16(b). Floyd v. Brown, 9 Vet. App. 88 (1996). 3. Entitlement to a rating in excess of 10 percent for vasomotor, allergic rhinitis (claimed as sinusitis) is remanded. In a July 2017 rating decision, the Veteran was denied an increased rating for his service-connected vasomotor, allergic rhinitis (claimed as sinusitis). In a September 2017 statement, the Veteran expressed disagreement with the rating assigned. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26 (2018). Thus, remand for issuance of a SOC on this issue is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, this issue will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matters are REMANDED for the following actions: 1. A statement of the case, containing all applicable laws and regulations, on the issue of entitlement to a rating in excess of 10 percent for vasomotor, allergic rhinitis (claimed as sinusitis) must be issued, and the Veteran must be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to this issue is perfected within the applicable time period should this issue be returned to the Board for appellate review. 2. Schedule the Veteran for VA examination to determine the nature and severity of his service-connected chronic back pain with history of spondylolisthesis of L5-S1, bulging disc space L4-L5. The Veteran’s claims file should be provided to the examiner. The examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary should be performed. The examiner must provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must comment on the functional effects of the disability evaluated. 3. Refer the Veteran’s claim for a TDIU to the Director of Compensation Service for extraschedular consideration pursuant to the provisions of 38 C.F.R. § 4.16(b). CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel