09-10 127
09-10 127
| Board of Vet. App. | Aug 31, 2016Background
- Veteran served on active duty in the U.S. Army (1970–1974) and later in the Guard/Reserves; appeal arises from a November 2007 RO rating decision.
- Veteran has service‑connected residuals of a right ankle fracture, previously assigned a 20% schedular rating (granted by the Board in December 2012 and implemented January 2013).
- Veteran seeks (1) TDIU (total disability based on individual unemployability) and (2) an extraschedular rating for the right ankle residuals.
- December 2012 Board remand directed referral to the Under Secretary for Benefits or Director of Compensation and Pension Service to consider an extraschedular evaluation, but the record lacks evidence the AOJ complied.
- Because extraschedular referral was not completed and outstanding VA records post‑September 2015 exist, the Board remanded both the extraschedular issue and the TDIU claim (the latter as inextricably intertwined).
- Remand directives: obtain outstanding VA treatment records; refer the extraschedular question to the Under Secretary or Director per 38 C.F.R. § 3.321(b); readjudicate and issue an SSOC if benefits remain denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to TDIU | Veteran argues service‑connected disabilities prevent substantially gainful employment | AOJ has not fully developed/addressed extraschedular impact; premature to decide TDIU before extraschedular referral | Remanded as inextricably intertwined with extraschedular claim; development required |
| Entitlement to extraschedular rating for right ankle residuals | Veteran seeks extraschedular evaluation because schedular criteria may be inadequate | AOJ adjudicated only on a schedular basis and did not show referral to Under Secretary/Director | Remanded for compliance: refer to Under Secretary/Director for initial extraschedular consideration and obtain outstanding records |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (establishes requirement that VA substantially comply with Board remand directives)
- Floyd v. Brown, 9 Vet. App. 88 (explains that the Board must refer extraschedular matters to the Under Secretary or Director for initial consideration)
- Harris v. Derwinski, 1 Vet. App. 180 (doctrine that claims may be inextricably intertwined and should be adjudicated together)
- Kutscherousky v. West, 12 Vet. App. 369 (holding that a claimant may submit additional evidence after remand and requires VA to consider it)