Citation Nr: 21024586 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 14-32 305 DATE: April 23, 2021 REMANDED An initial rating in excess of 10 percent prior to October 27, 2017, and in excess of 20 percent thereafter, for partial superficial peripheral nerve (tibial nerve) paresis of the right foot (right foot nerve paresis), is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from December 1967 to December 1970. The Veteran also served in the Army National Guard. The matter is on appeal before the Board from a November 2012 rating decision. The Veteran provided testimony at a November 2017 Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The issue of an initial increased rating for the Veteran’s right foot nerve paresis was previously before the Board in March 2018 and was partially granted. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). CAVC issued a Joint Motion for Partial Remand (JMPR) in December 2018 vacating the Board’s March 2018 decision in regard to the denial of a disability rating in excess of 10 percent prior to October 26, 2017 and remanded the issues for further development. The Board remanded the issues for further development in both July 2019 and February 2020. The development re with the previous remands is completed, and the issues have returned to the Board for further adjudication. However, the Board finds that an additional remand is warranted to refer the issues to the Director of Compensation Service for extraschedular consideration. The Veteran’s representative argues that the schedular rating criteria under Diagnostic Code 8525 is inadequate because the Veteran’s chronic pain and functional limitations caused by his right foot nerve paresis have prevented him from working in any capacity. Thus, it is contended that an assignment of a “total” rating is warranted. In the Veteran’s September 2014 Form 9 Appeal to the Board, in relation to his right foot nerve paresis, the Veteran reported that his condition had caused him to retire early. Additionally, the Veteran provided testimony at the November 2017 Board hearing that he had retired from his work because his foot was getting worse. Entitlement to a TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Over the period on appeal, the Veteran has been service-connected for residuals of a right ankle fracture with degenerative changes with an evaluation of 20 percent from November 6, 2008; for partial superficial peripheral nerve (tibial nerve) paresis of the right foot with a 10 percent evaluation from January 31, 2012, and with a 20 percent evaluation from October 26, 2017; and for hypertension with a 10 percent evaluation from December 6, 2013. Thus, the Veteran’s highest combined evaluation during the appeal period is 40 percent, and therefore he does not meet the schedular rating criteria for a TDIU. On April 8, 2021, the Veteran submitted an opinion pertaining to unemployability from a vocational consultant, who found the Veteran to be unemployable solely due to his service-connected right foot and ankle disabilities. As the Veteran does not meet the schedular rating criteria for a TDIU, and in light of the vocational consultant’s opinion, referral to the Director of Compensation Service for extraschedular TDIU consideration is warranted. Additionally, based upon the representative’s argument that the schedular rating criteria under Diagnostic Code 8525 is inadequate, and in light of the vocational consultant’s opinion, referral to the Director of Compensation Service for extraschedular consideration of an initial rating in excess of 10 percent prior to October 27, 2017, and in excess of 20 percent thereafter, for partial superficial peripheral nerve (tibial nerve) paresis of the right foot, is also warranted. It is important to observe here that in remanding the issues for referral to the Director of Compensation Service, the Board declines to take any position at this time as to whether the criteria have been met for the assignment of an extraschedular is warranted for the Veteran’s right foot nerve paresis, or whether the assignment of an extraschedular TDIU is warranted. That is, the Board is not making any concrete findings that the extraschedular criteria are met. Rather, the Board is remanding the claim to allow the Veteran two bites at the proverbial apple. First the Director of Compensation will have an opportunity to consider the case, and then if it is denied, the Board will have another opportunity to consider the issues. While the Veteran’s representative argued that the Board was not required to refer the question of a TDIU to the Director of Compensation and Pension in the first instance, the Board finds that the law very clearly requires that this should be done. The matters are REMANDED for the following action: (Continued on the next page)   1. Refer the issue of an initial rating in excess of 10 percent prior to October 27, 2017, and in excess of 20 percent thereafter, for partial superficial peripheral nerve (tibial nerve) paresis of the right foot to the Director of Compensation Service for extraschedular consideration. 2. Refer the issue of a TDIU to the Director of Compensation Service for extraschedular consideration. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.