Citation Nr: 22014935 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 16-47 708 DATE: March 15, 2022 REMANDED Entitlement to separate ratings and extraschedular referral for Ehlers-Danlos Syndrome with fibromyalgia is remanded. REASONS FOR REMAND The Veteran served on active duty from March 1982 to June 1982 and from June 1985 to December 1985. This matter is before the Board of Veterans' Appeals (Board) on appeal of the April 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in February 2019. A transcript of the hearing is of record. The issue on appeal was previously before the Board in October 2020, that granted a disability rating of 100 percent for Ehlers-Danlos Syndrome (EDS). The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) which, in an October 2021 Joint Motion for Partial Remand (JMPR), vacated the portion of the Board's October 2020 decision that failed to address the issues of entitlement to separate ratings and extraschedular referral for the Veteran's EDS, and remanded the claim for readjudication. Under 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of Compensation Service (collectively, Director) is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, although the Veteran was granted a 100 percent rating for EDS during the entire period on appeal under DC 5025-5002, it was argued that this rating does not adequately account for the Veteran's level of disability. See November 2021 Appellate Brief. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, the Board must determine whether the disability picture qualifies as exceptional because it exhibits other related factors, e.g., "marked interference with employment." 38 C.F.R. § 3.321(b)(1). In this case, the record shows that the Veteran's EDS has been associated with vision fluctuations and dry eyes; memory loss; arthritis, bulging discs, and annular fissures in multiple vertebrae; pedicle and facet bone marrow edema; ruptured uterus; TMJ and jaw dislocation; chronic dislocation of the pelvis, knees, ribs, ankles, wrists, shoulders, and hips; and severe muscle spasms. Moreover, the record demonstrates that the Veteran is not employed, and was granted a total disability based up individual unemployability (TDIU) as of March 29, 2015. The Board finds that the evidence presents an exceptional disability picture, and the Veteran's claim should be referred for consideration of separate ratings and/or an extraschedular rating. The matter is REMANDED for the following action: 1. Refer the Veteran's claim to the Director for consideration of an extraschedular rating for the Veteran's EDS. Such a referral should be accompanied by a notation that, because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there is logically no guidance as to the specific rating that should be assigned in any particular case. Kuppamala v. McDonald, 27 Vet. App. 447, 443, n.7 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996). All relevant electronic records contained in the claims file, to include this Remand order, should be provided to the Director for review. 2. The Director should issue a memorandum addressing whether, at any point during the period on appeal, the Veteran has been entitled to separate ratings, or a rating in excess of 100 percent for her EDS on an extraschedular basis. When considering separate ratings, please note that the record shows that the Veteran's EDS has been associated with vision fluctuations and dry eyes; memory loss; arthritis, bulging discs, and annular fissures in multiple vertebrae; pedicle and facet bone marrow edema; ruptured uterus; TMJ and jaw dislocation; chronic dislocation of the pelvis, knees, ribs, ankles, wrists, shoulders, and hips; and severe muscle spasms The memorandum should also specifically consider and discuss the Veteran's contentions pertaining to the impact of EDS on her employment and daily life. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The law requires that all claims that are remanded by the Board of Veterans' Appeals for additional development must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.