PREC 6-96   Issues related to Floyd v. Brown, 9 Vet. App. 88 (1996)     Citation: Vet. Aff. Op. Gen Couns. Prec. 6-96, VAOPGCPREC 6-96, 1996

QUESTIONS PRESENTED:

a.  Under what circumstances must the Board of Veterans’

Appeals (Board) address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) or 38 C.F.R. § 4.16(b) in reviewing claims for an increased evaluation for

a service-connected disability or a total disability rating

for compensation based on individual unemployability? 

b.  In circumstances where the issue of entitlement to an extraschedular rating under section 3.321(b)(1) or 4.16(b) must be addressed, what procedure should the Board follow when the issue was not addressed by the regional office (RO)?  Does the Board have jurisdiction over extraschedular claims raised for the first time by the record or the appellant before the Board?

c.  Is the issue of entitlement to an extraschedular evaluation inextricably intertwined with the underlying claim for an increased evaluation or a total disability rating based on individual unemployability, such that the issues may not be separated by the Board for purposes of taking final action on

appeal?

d.  If the appellant or the representative raises the issue of a rating under section 3.321(b)(1) or 4.16(b) but submits no argument or evidence, and the record on appeal contains no evidence that would make such a claim plausible, may the Board dismiss the claim as not well-grounded or conclude that the RO’s failure to address the issue of an extraschedular evaluation was harmless error because the claim is not plausible?

HELD:

a.  The Board is required to address the issue of entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence of “exceptional or unusual” circumstances indicating that the rating schedule may be inadequate to compensate for the average impairment of earning capacity due to the disability.  The Board is required to address the issue of entitlement to a total disability rating based on individual unemployability (TDIU rating) under 38 C.F.R. § 4.16(b) only in cases where the issue is expressly raised by the claimant or the record before the Board contains evidence that the appellant may be unable to secure or follow a substantially gainful occupation due to his or her service-connected disability.

b.  When the issue of entitlement to an extraschedular rating or a TDIU rating for a particular service-connected disability or disabilities is raised in connection with a claim for an increased rating for such disability or disabilities, the Board would have jurisdiction to consider that issue.  If the Board determines that further action by the RO is necessary with respect to the issue, the Board should remand that issue.

c.  When the issue of entitlement to an extraschedular rating or a TDIU rating arises in connection with an appeal in an increased rating case, the Board is not precluded from issuing a final decision on the issue of an increased schedular rating and remanding the extraschedular-rating or TDIU-rating issue to the RO.

d.  Where the appellant has raised the issue of entitlement

to an extraschedular rating or a TDIU rating but the record contains no evidence which would render the claim plausible, the Board may, subject to the considerations expressed in

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VAOPGCPREC 16-92 and Bernard v. Brown, determine that the

referral to the appropriate officials for consideration of an extraschedular rating or a TDIU rating is not warranted.