BVA9508398 DOCKET NO. 91-38 468 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an extension of a temporary total disability rating beyond September 30, 1989, pursuant to 38 C.F.R. § 4.30. 2. Entitlement to a total rating for compensation purposes based upon the veteran's individual unemployability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. L. Gann, Associate Counsel INTRODUCTION The veteran had active service from February 1969 to February 1971. This appeal arises from a May 1990 rating decision of the Louisville, Kentucky, Regional Office (RO) which granted entitlement to a temporary total rating for post-surgical convalescence for left wrist surgery from June 1, 1989 to September 30, 1989, and thereafter assigned a 30 percent schedular disability rating for his service-connected left wrist disability. In August 1990, the RO then granted service connection for "ulnar neuropathy, left hand," secondary to the service-connected left wrist disability, and assigned a 20 percent disability rating effective from June 2, 1989, for this disorder. The veteran also disputed the schedular evaluation assigned for this disability, and this issue was incorporated into his appeal. In February 1992, the Board of Veterans' Appeals (Board) remanded the veteran's claim for compliance with due process considerations. Upon receipt of the returned claims folder, the Board again remanded the case in February 1994, for additional evidentiary development in conjunction with its duty to assist the veteran. While on remand, the RO granted a retroactive increase from 30 percent to 40 percent for the veteran's service-connected left wrist disability, pursuant to Diagnostic Code 5214, and a retroactive increase from 20 percent to 30 percent for his left hand ulnar neuropathy, pursuant to Diagnostic Code 8516. The veteran's representative has acknowledged that these are the maximum schedular benefits allowable under these respective diagnostic codes, and the issues of increased schedular disability ratings for the veteran's service-connected left wrist and hand disabilities are no longer on appeal. The veteran's representative also notes the veteran's allegations with regard to the "loss of use" of his left hand as a result of his service-connected left hand and wrist disabilities. Inasmuch as these contentions inferentially raise the issue of entitlement to special monthly compensation pursuant to 38 U.S.C.A. § 1114 (West 1991); 38 C.F.R. § 3.350 (1994), the RO is instructed to undertake appropriate development and adjudication of this issue. REMAND The remaining issue on appeal concerns the veteran's entitlement to an extension of a temporary total convalescence rating beyond September 30, 1989, for his surgery performed on his left wrist in June 1989. We note, however, that since September 1990, the veteran's primary contention is that he has not been able to work since June 1989 as a result of his service-connected left wrist and hand disabilities. Although the veteran has been awarded the maximum schedular ratings for both of these service connected disorders, regulations provide that consideration to increased benefits may be awarded on an extraschedular basis. Where a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of regular schedular standards, an extraschedular evaluation may be awarded. 38 C.F.R. § 3.321 (1994). A total disability rating may also be considered where the impairment resulting from service-connected disabilities renders it impossible for the veteran to follow a substantially gainful occupation, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341 (1994). The veteran's accredited representative suggests in his informal arguments in March 1995 that the provisions of 38 C.F.R. § 4.16 (1994) be considered also. We find that the veteran's arguments concerning the extension of his temporary total rating for convalescence are inextricably intertwined with, if not totally subsumed by, his contention that he deserves a grant of a total rating based upon his unemployability, effective as of June 1989. Inasmuch as the RO did not consider the veteran's entitlement to a total rating when it awarded the veteran's increased schedular ratings for his left wrist and hand disabilities, such review must be accomplished prior to the Board's appellate review on the issue of an extended temporary total rating for post-surgical convalescence. See Begin v. Derwinski, 3 Vet.App. 257 (1992); Babchak v. Principi, 3 Vet.App. 466 (1992). Based on the foregoing, this case is REMANDED for the following: The RO is instructed to undertake appropriate development on the issue of the veteran's entitlement to a total rating based upon his individual unemployability. This development may include, but is not limited to, acquisition of additional medical evidence, as well as information on the veteran's educational and occupational history. Once this development is completed, the RO should readjudicate the issue of entitlement to an extension of a temporary total rating beyond September 30, 1989, based upon post-surgical convalescence under 38 C.F.R. § 4.30 (1994), and should adjudicate the issue of entitlement to a total rating based upon individual unemployability pursuant to 38 C.F.R. §§ 3.321, 3.340, 3.341 (1994). Should the RO's decision remain adverse to the veteran, he and his representative should be furnished with a supplemental statement of the case, and afforded a reasonable opportunity for reply. The claims folder should then be returned to the Board for appropriate appellate consideration. The purpose of this remand is to comply with our duty to ensure due process. The Board intimates no opinion as to the ultimate outcome of this case, and the veteran need take no action unless otherwise notified. BETTINA S. CALLAWAY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. 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) (1994).