Citation Nr: 1648500	
Decision Date: 12/29/16    Archive Date: 01/06/17

DOCKET NO.  11-14 236	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to an extraschedular rating for right ankle instability, status post ankle stabilization surgery with residual scarring.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A. B., Counsel

INTRODUCTION

The Veteran served on active duty from March 1996 to September 1996 and August 2004 to May 2005.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which, in pertinent part, granted service connection for right ankle instability, status post ankle stabilization surgery with residual scarring (herein right ankle instability) and assigned an initial noncompensable disability rating, effective April 23, 2010.

In an October 2011 decision, a Decision Review Officer assigned an initial 10 percent rating for the service-connected right ankle disability, effective April 23, 2010.  

The Veteran testified before the Board at an April 2012 videoconference hearing.  A transcript of that hearing has been associated with his claims folder.  

In a May 2014 decision, the Board denied an increased rating in excess of 10 percent prior to August 5, 2011, and granted an increased rating of 20 percent, but no higher, from that day forward for right ankle instability.  The Board also remanded the issue of service connection for bilateral hearing loss, a sleep disability, a low back disability, a cranial disability and a neck disability.  

The Veteran filed an appeal regarding the right ankle disability rating to the United States Court of Appeals for Veterans Claims (Court).  In September 2015, the Court issued a Memorandum Decision in which the schedular ratings assigned by the Board for the right ankle disability were affirmed, but the part of the decision that denied referral for extraschedular consideration was vacated, and the issue was remanded for further proceedings.

In a February 2015 rating decision, service connection for a low back and neck disability was granted.  In an October 2015 rating decision, service connection for obstructive sleep apnea was granted.  As these decisions represent a full grant of the benefits on appeal, the low back, neck, and sleep disability issues will not be considered herein.  

In April 2016, service connection for bilateral hearing loss and a cranial disability were denied.  The issue regarding an extraschedular rating for right ankle instability was remanded for additional development.  Unfortunately, the requested development has not yet been completed.  

Therefore, the appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.


REMAND

In the April 2016 remand, the Board explained that in the September 2015 Memorandum Decision, the Court requested that consideration be given to the combined effects of all service-connected disabilities on the Veteran's overall functioning for the purposes of determining whether he is entitled to an extraschedular rating.  See Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014).  The Court specifically stated that at least two other disabilities were service connected at the time.  The Board noted that there were eight service-connected disabilities to consider in this case, including a right lower extremity radiculopathy disability.  

The Board stated that because the issue has now been raised, the RO must consider whether referral for extraschedular consideration is warranted for the combined effects of all service-connected disabilities.  See Yancy v. McDonald, 27 Vet. App. 484 (2016).  The claim was remanded in order for consideration in the first instance of the combined effects of all service-connected disabilities on the Veteran's overall functioning for the purposes of determining whether he is entitled to an extraschedular rating.

Unfortunately, this development was not completed.  In a June 2016 supplemental statement of the case, the RO stated that the Veteran's disability (presumably the right ankle instability disability) "does not present 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, therefore, your case is not considered for extra-schedular consideration."  There was no discussion whatsoever of the combined impact of the Veteran's service-connected disabilities or of any service-connected disability other than the right ankle instability disability in any decisional document by an agency of original jurisdiction as required.  

As the Board's April 2016 remand order has not been complied with, remand of the issue is necessary.  See Stegall v. West, 11 Vet. App 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance).  

Accordingly, the case is REMANDED for the following action:

1.  Consider the combined effects of all service-connected disabilities on the Veteran's overall functioning for the purposes of determining whether he is entitled to an extraschedular rating.  If a new VA examination is required, one must be provided.  

2.  Determine whether the overall disability picture warrants referral to the VA's Director of Compensation and Pension Service or Under Secretary for Benefits to adjudicate entitlement to an extraschedular rating for right ankle instability, to include the combined effects of the service-connected disabilities on the Veteran's overall functioning. 

3.  Then readjudicate the claim, and issue a supplemental statement of the case, if appropriate. 
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2015).



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