Citation Nr: 1808558 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 14-12 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for right ankle sprain residuals on an extraschedular basis. 2. Entitlement to an increased rating in excess of 20 percent for left ankle sprain residuals on an extraschedular basis. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from February 1977 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In a November 2015 decision, the Board denied disability ratings in excess of 20 percent for right and left ankle disabilities. In November 2015, the Board also remanded claims for service connection for an acquired psychiatric disorder and entitlement to TDIU. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In June 2016, the Court granted a Joint Motion for Partial Remand, which vacated the portion of the Board's decision that denied evaluations in excess of 20 percent for right ankle sprain and left ankle ligamentous injury residuals and remanded the issues to the Board for action consistent with the Joint Motion. In December 2016, the Board remanded the claims for increased ratings for ankle disabilities for additional development, to include providing the Veteran a VA examination and obtaining VA treatment records. In an April 2017 decision, the Board denied higher ratings for the ankle disabilities on a schedular basis. The Board remanded the issues of entitlement to extraschedular ratings for service-connected right and left ankle disabilities for consideration by the Director of the Compensation and Pension Service. In April 2017, the Board found that the TDIU issue was not properly before the Board, as it had not been re-certified by the RO. Where a claimant, or the record, raises the question of unemployability due to the disability for which an increased rating is sought, then part of the increased rating claim is an implied claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran maintains that he is unemployable due to his service-connected disabilities, including his ankle disabilities. The development of the TDIU claim may provide additional evidence that would be relevant to the claims for extraschedular ratings for ankle disabilities. Brambley v. Principi, 17 Vet. App. 20, 24 (2003). Accordingly, the Board takes jurisdiction of the TDIU claim. The issue of entitlement to service connection for PTSD was remanded in November 2015 for development of stressors and a VA examination. The Board notes that the actions requested in the November 2015 remand with regard to the appeal for service connection for PTSD have not been completed. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND The Board previously remanded the claims for increased ratings for ankle disabilities so that the claims could be referred to the Director of Compensation Service for extraschedular consideration. In July 2017, the Compensation and Pension Service issued an opinion regarding entitlement to extraschedular ratings. The opinion determined that the Veteran had not required hospitalization for his ankle disabilities. The opinion indicated that the Veteran's ankle conditions limited his ability to perform occupations that require prolonged standing and walking or a high level of exertion, but would not affect his ability to perform sedentary work. The opinion found that an extraschedular rating is not warranted for service-connected right ankle sprain residuals and left ankle ligamentous injury. The Veteran asserts that his service-connected disabilities render him unemployable. Information submitted by the Veteran in July 2015 reflects that he was employed at a country club as a golf cart collector until October 2014. He indicated that he is unable to work due to his service-connected back and ankle disabilities. Under 38 C.F.R. § 4.16(a), a veteran must meet certain schedular criteria before an award of TDIU may be granted. The Veteran does not currently meet the schedular criteria under 38 C.F.R. § 4.16(a). Although the Veteran does not meet the schedular requirements for a TDIU, a total rating may nonetheless be assigned upon a showing that the Veteran was unable to obtain or retain substantially gainful employment during the appeal period. 38 C.F.R. § 4.16 (b). In such cases, a claim may be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the Veteran's disability picture requires the assignment of an extraschedular rating under 38 C.F.R. § 4.16(b). The issue of entitlement to TDIU was previously remanded by the Board in November 2015. The remand directed the AOJ to obtain the Veteran's vocational rehabilitation file and adjudicate the claim for TDIU. The vocational rehabilitation records were associated with the record in December 2015. The TDIU claim has not been adjudicated. The development of the TDIU claim could impact the Veteran's eligibility for an extraschedular rating. The Board is, therefore, deferring consideration of the claims for extraschedular ratings pending development and adjudication of the claim for TDIU. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a general medical examination to determine the functional impairment caused solely by his service-connected disabilities, singly and in combination. The examiner should describe the Veteran's functional impairments in detail and should provide a rationale for any opinions provided regarding the degree of his functional impairment due to his service-connected disabilities. 2. Refer the claim to the Director, Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 3. Complete any other action necessary to develop the TDIU claim. 4. Adjudicate the claim for TDIU. If the benefit sought on appeal is denied, provide a Supplemental Statement of the Case to the Veteran and his representative. Allow an appropriate period for them to respond. 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. §§ 5109B, 7112 (2012). _________________________________________________ JENNIFER HWA Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), 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) (2017).