Citation Nr: 20008244 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 08-31 823 DATE: January 31, 2020 REMANDED Entitlement to a disability rating in excess of 40 percent for venous insufficiency, left lower extremity is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1989 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2008 rating decision. In August 2012, the Board denied the Veteran’s claim for an increased rating. The Veteran appealed, and in August 2013, the United States Court of Appeals for Veterans Claims (the Court) granted the Joint Motion for Remand (JMR) filed by the parties, vacated the Board’s decision as it pertained to his left leg, and remanded the issue for action consistent with the terms of the joint motion. In March 2014, the Board remanded the matter for further development. The Board again denied the Veteran’s claim for an increased rating in October 2014. The Court vacated that decision in January 2016 and remanded the issue for further proceedings consistent with the decision. The Veteran’s claim for an increased rating was remanded by the Board in September 2016, April 2017, and December 2017 for further development. Unfortunately, the Veteran’s claim for an increased rating must be remanded again for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim for an increased rating, so he is afforded every possible consideration. Entitlement to a disability rating in excess of 40 percent for venous insufficiency, left lower extremity is remanded. In December 2017, the Board remanded this matter to, in part, refer the Veteran’s claim for an increased rating to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b) on an individual and collective basis. The Veteran’s claims folder contains a November 2018 Memorandum from the Appeals Resource Center to the Director of Compensation Service recommending that extraschedular consideration under 38 C.F.R. § 3.321(b) on an individual and collective basis should be denied. However, the record does not demonstrate that the Veteran’s claim for an increased rating was referred to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration. Therefore, the Board finds that there was not substantial compliance with the December 2017 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). While the Board may assign an extraschedular rating when appropriate, the Board is precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). The Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director of Compensation Service. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Given that the matter was not referred to the Director of Compensation Service as ordered, the Board is precluded from deciding the matter at this time. Thus, on remand, the matter should be referred to the Director of Compensation Service to comply with the Board’s remand directives and 38 C.F.R. § 3.321(b). The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from May 2019 to the present. 2. After the above development is completed, refer the Veteran’s claim for an increased rating for venous insufficiency, left lower extremity, to the VA’s Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 3.321(b). P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.