Citation Nr: 18124000
Decision Date: 08/03/18	Archive Date: 08/03/18

DOCKET NO. 13-26 102
DATE:	August 3, 2018
REMANDED
Entitlement to an initial rating in excess of 20 percent for bladder cancer prior to September 3, 2014, and in excess of 40 percent prior to December 1, 2014, to include on an extraschedular basis is remanded.
Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) prior to December 1, 2014, to include on an extraschedular basis is remanded.
REASONS FOR REMAND
The Veteran served on active Duty in the United States Air Force from January 1961 to January 1965. 
In a July 2017 decision, the Board denied higher ratings for the Veteran’s service-connected bladder cancer for the period prior to December 1, 2014 and TDIU for the period prior to December 1, 2014.  The Veteran appealed the denials to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a February 2018 Joint Motion for Remand (JMR), the Court vacated the July 2017 decision and remanded the matters for compliance with the Court’s instructions.
In the February 2018 JMR, the parties agreed that the Board had not provided an adequate statement of reasons and bases in its denial of higher ratings for the Veteran’s bladder cancer prior to December 1, 2014 based on a failure to conduct an extraschedular rating analysis.  The Court noted that the Veteran’s bladder cancer manifested in symptoms, other than urinary frequency and incontinent, including bladder spasms, chronic suprapubic pain, and chronic fatigue, which were not explicitly listed among the manifestations contemplated by the ratings criteria in 38 C.F.R. § 4.115a.  The Court also identified that evidence of record indicated that such symptoms resulted in a marked interference with the Veteran’s employment.  A November 2015 private examiner’s report noted that since 2009 the Veteran was “unable to work due [to] fatigue, chronic bladder pain, urinary frequency and incontinence,” and an October 2016 private physician’s report which noted that the Veteran had to quit his profession due to progressive symptoms related to his bladder cancer. 
The Board notes that it is precluded by regulation from assessing, in the first instance, the merits of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Kuppamala v. McDonald, 27 Vet. App. 447 (2015).  However, the Board is required to consider whether a case should be referred to the Director of VA’s Compensation Service for such assessment in the first instance.  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization that would indicated that the available schedular ratings for that service-connected disability are inadequate.  If the Board determines that the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred first to Director of the Compensation and Pension Service to determine whether, to accord justice, an extraschedular rating must be assigned.  See Thun v. Peake, 22 Vet. App. 111, 115 (2008).
Accordingly, the issue of entitlement to extraschedular compensation for the Veteran’s service-connected bladder for the period prior to December 1, 2014 is remanded for referral to the Director of the Compensation Service in accordance with 38 C.F.R. § 3.321(b)(1). Thun v. Peake, 22 Vet. App. 111 (2008).
The Board also notes that because a decision on the referred issue of higher ratings for bladder cancer prior to December 1, 2014 could significantly impact a decision on the claim for TDIU prior to December 1, 2014, the issues are inextricably intertwined.  A remand of the claims for the claim of TDIU prior to December 1, 2014 is required.  As the Veteran does not currently meet the schedular requirements for TDIU for the period prior to December 1, 2014, and the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance, the Director of Compensation Service should also provided consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001).
The matters are REMANDED for the following action:
Refer the Veteran’s claim for an increased rating for bladder cancer for the period prior to December 1, 2014 and the claim for TDIU for the period prior to December 1, 2014 to VA’s Director of Compensation Service for extraschedular consideration.
 
Evan M. Deichert
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Eric Struening, Associate Counsel

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