Citation Nr: 18158206 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 09-41 799 DATE: December 18, 2018 ORDER Referral for extraschedular consideration based on the collective impact of superficial stromal opacities, status post photorefractive keratectomy (bilateral eye disability), herpes simplex, and post-operative cyst with scar (neck scar) is denied. REMANDED Entitlement to an initial compensable rating for a bilateral eye disability on an extraschedular basis is remanded. FINDING OF FACT An extraschedular rating based on the collective impact of the Veteran’s multiple service-connected disabilities is no longer available as a matter of law. CONCLUSION OF LAW The claim for an extraschedular rating based on the collective impact of the Veteran’s bilateral eye disability, herpes simplex, and neck scar lacks legal merit. 38 U.S.C. § 1155; 38 C.F.R. § 3.321(b)(1); 82 Fed. Reg. 57830 (Dec. 8, 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from May 2000 to June 2008. His decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In April 2016, the Board denied initial compensable ratings for the Veteran’s service-connected bilateral eye, herpes simplex, and neck scar disabilities, on both a schedular and extraschedular basis. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In October 2017, the Court vacated the Board’s April 2016 decision insofar as the Board denied referral for extraschedular rating (1) based on the collective impact of the Veteran’s service-connected bilateral eye disability, herpes simplex, and neck scar, and (2) for bilateral eye disability alone. Extraschedular Consideration on a Collective Basis As a preliminary matter, the Board notes that the Court remanded the question of extraschedular consideration, in part, for the Board to further consider whether referral was warranted for consideration of an extraschedular rating based on the collective impact of the Veteran’s service-connected bilateral eye disability, herpes simplex, and neck scar, in accordance with Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). However, on December 8, 2017, VA amended 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating is not available based on the combined effects of multiple service-connected disabilities. See Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57830 (Dec. 8, 2007). The December 2017 rule applies to all applications for benefits that are received by VA on or after January 8, 2018 or that were pending before VA, the Court, or the United States Court of Appeals for the Federal Circuit on January 8, 2018. The Court recently confirmed that the revised 38 C.F.R. § 3.321(b) can be applied to claims that were pending before VA on January 8, 2018, because doing so does not have an impermissible retroactive effect. Thurlow v. Wilkie, No. 16-3633 (U.S. Vet. App. Sep. 12, 2018). In light of the foregoing, an extraschedular rating based on the collective impact of the Veteran’s multiple service-connected disabilities is no longer available as a matter of law. As such, this portion of his appeal must be denied as lacking legal merit. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). REASONS FOR REMAND The remaining issue on appeal must be remanded for additional development. As noted by the Court, the Veteran’s bilateral eye disability is manifested by, among other things, complaints of “flares and stars that come in front of the eyes, especially at nighttime.” After considering the evidence of record and taking into account points raised in the October 2017 Court decision and the Veteran’s brief before the Court, the Board is persuaded that referral of the Veteran’s bilateral eye disability claim should be referred for extraschedular consideration. This matter is REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA and private treatment records. 2. Refer the claim of entitlement to an extra-schedular rating for the Veteran’s service-connected bilateral eye disability to the Director of the Compensation Service for extraschedular consideration. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the issue remaining on appeal based on the entirety of the evidence. If the benefit sought on appeal remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel