Citation Nr: 18115697
Decision Date: 07/03/18	Archive Date: 07/02/18

DOCKET NO. 96-37 108A
DATE:	July 3, 2018
REMANDED
Entitlement to an extraschedular rating for service-connected nephrolithiasis is remanded.
REASONS FOR REMAND
The Veteran served on active duty from July 1963 to July 1965, and from January 1966 to January 1969.
This issue comes from an August 1994 claim for increased rating that was initially denied by the RO in October 1995.  In a February 2005 decision, the Board declined to grant an increased rating, as the Veteran’s nephrolithiasis already receives the maximum rating under Diagnostic Code (DC) 7508.  A January 2008 Court of Appeals for Veterans Claims (CAVC) order vacated the Board’s decision; however, a September 2009 Court of Appeals for the Federal Circuit vacated the CAVC order.  In December 2012, CAVC upheld the Board’s decision to decline to grant the claim for a schedular increased rating, but directed the Board to consider an extraschedular rating and entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU).  In April 2013, the RO granted TDIU.  In March 2016, the Board remanded the extraschedular claim for further consideration.  That issue has now been returned to the Board for further adjudication.
1. Entitlement to an extraschedular rating for service-connected nephrolithiasis is remanded.
The claims file contains a June 2017 memorandum from the Director, Compensation Services, noting among other things that the Veteran’s nephrolithiasis has been rated as 30 percent disabling since 2009; evidence does not show any hospitalizations for this condition; and evidence does not show surgical procedures for this condition “since 2009.”
It appears that the Director only considered the time period since 2009 when evaluating entitlement to an extraschedular rating.  The issue, however, arises from an August 1994 claim that was initially adjudicated by the RO in October 1995.  Additionally, the evidence does reflect at least two hospitalizations for service-connected nephrolithiasis, in August 2008 and January 2009.  The Board notes that the Veteran has received a has a temporary total evaluation for hospitalization during both of these periods.
Under these circumstances, the claim is remanded for referral to the Director, Compensation Service, for extraschedular consideration for the entire time period under appeal.  38 C.F.R. § 4.16(b).
The matter is REMANDED for the following action:
1. Forward the Veteran’s claim to the Director, Compensation Service, for consideration of the assignment of an extraschedular rating for service-connected nephrolithiasis since August 1994.




2. If the benefit sought is not granted in full, the Veteran should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board.
 
T. MAINELLI
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	C. Howell, Associate Counsel