**This version includes the errata of 11Mar03-e**

**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 01-1156

[Seth D. Brambley, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Anthony J. Principi,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee.]{.smallcaps}

On Appeal from the Board of Veterans\' Appeals

(Decided February 27, 2003 )

*Richard A. LaPointe,* of Marco Island, Florida, was on the brief for
the appellant.

*Tim S. McClain*, General Counsel; *Joan E. Moriarty*, Acting Assistant
General Counsel; *Mary Ann Flynn*, Deputy Assistant General Counsel; and
*Robert W. Legg*, all of Washington, D.C., were on the brief for the
appellee.

Before KRAMER, *Chief Judge*, and IVERS and STEINBERG, *Judges*.

IVERS, *Judge*, filed the opinion of the Court. STEINBERG, *Judge*,
filed a concurring opinion.

IVERS, *Judge*: Veteran Seth Brambley appeals a May 30, 2001, decision
of the Board of Veterans\' Appeals (Board or BVA) that (1) denied an
increased disability rating for low back strain with degenerative
arthritis of the lumbar spine with limitation of motion, currently rated
as 40% disabling; (2) denied an increased rating for degenerative
arthritis of the thoracic spine with pain on motion, currently rated as
10% disabling; and (3) remanded a claim for a rating of total disability
based on individual unemployability (TDIU). Record (R.) at 1-23. The
Court will not address the merits of the remanded TDIU-rating claim
because no final Board decision has been entered with respect to that
claim, and it is not, therefore, properly before the Court. *See* 38
U.S.C. § 7252(a); *Howard v. Gober*, 220 F.3d 1341, 1344 (Fed. Cir.
2000); *see also* 38 C.F.R. § 20.1100(b) (2002). For the reasons
discussed below, the Court will vacate the Board decision and remand the
matter for further proceedings consistent with this opinion.

**I. FACTS**

The appellant served on active duty with the U.S. Marine Corps from June
1985 to March 1987. R. at 102. In September 1997, he filed a claim
seeking increased disability ratings for his service-connected back
conditions and a claim seeking a TDIU rating. R. at 231-35. At that
time, the veteran had a 20% disability rating for chronic low back
strain with degenerative arthritis of the lumbosacral spine with
limitation of motion, and a 10% disability rating for degenerative
arthritis of the thoracic spine with pain on motion. R. at 145-47,
171-73. A VA regional office (RO) conducted a spine examination in
August 1999. R. at 316-20. X-rays showed, inter alia, mild degenerative
arthritic changes in the thoracic area, deformity of the anterosuperior
corner of the L4 vertebra, and degenerative changes in the lumbar
region. R. at 319. A VA compensation and pension (C&P) social work
examination was conducted in September 1999 to review the appellant\'s
work history and assess his employability. R. at 310-14. A November 1999
RO decision continued the 10% rating for his arthritis of the thoracic
spine and awarded a rating increase to 40% for degenerative arthritis of
the lumbar spine with limitation of motion. R. at 322-29. The same RO
decision denied the TDIU-rating claim on the ground that the
appellant\'s condition did not meet the regulatory threshold described
in 38 C.F.R. § 4.16(a) (2002) for that rating. R. at 327.

In the decision here on appeal, the Board reviewed the history of the
appellant\'s claims concerning his back disabilities. R. at 3-9. The
Board summarized the relevant regulatory diagnostic codes and analyzed
the appellant\'s service-connected disabilities in light of the
applicable codes. R. at 9-12. The Board concluded that the appellant was
receiving the maximum schedular ratings allowed for his conditions. R.
at 15-17. The Board also considered the applicability of an
extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) (2002). The
Board concluded that the appellant had not demonstrated that either of
his back conditions, in and of itself, was sufficiently extraordinary or
unusual to warrant referral to the VA C&P Service Director for
consideration of an extraschedular rating. R. at 15-17.

With respect to the appellant\'s TDIU-rating claim, the Board concluded
that additional evidentiary development was necessary. R. at 18. In a
seven-point remand order, the RO was directed to clarify inconsistencies
in the appellant\'s employment history, particularly the effect of his
service-connected disabilities on his employability. R. at 19-22. The RO
was directed to provide for an orthopedic examination, if necessary, to
determine whether the appellant was capable of performing sedentary or
nonstrenuous employment. R. at 21.

**II. ANALYSIS**

The Board\'s findings as to the degree of impairment resulting from a
disability are factual and are reviewed by the Court under the \"clearly
erroneous\" standard under 38 U.S.C. § 7261(a)(4). *See Francisco v.
Brown*, 7 Vet.App. 55, 57 (1994); *Gilbert v. Derwinski*, 1 Vet.App. 49,
53 (1990). The Board must base its decision on \"all evidence and
material of record\" and must provide a \"written statement of the
Board\'s findings and conclusions, and the reasons or bases for those
findings and conclusions, on all material issues of fact and law
presented on the record.\" 38 U.S.C. § 7104(a), (d)(1); *see* *Gilbert*,
1 Vet.App. at 56-57. Pursuant to these statutory requirements, the Board
must \"account for the evidence which it finds to be persuasive or
unpersuasive,\" and provide reasons or bases for rejecting evidence
submitted by or on behalf of the claimant. *Gilbert*, 1 Vet.App. at 57.
The Board\'s statement must be adequate to inform the appellant of the
basis for the discussion and to permit effective judicial review. *See
Fleshman v. Brown*, 9 Vet.App. 548, 552-53 (1996); *Allday v. Brown*, 7
Vet.App. 517, 527 (1995).

The appellant contends, inter alia, that the Board failed to provide an
adequate statement of reasons or bases as to the issue of entitlement to
an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Appellant\'s
Brief (Br.) at 5. The Secretary counters that the Board reviewed the
entire record and found that the evidence did not show that either the
appellant\'s low back disability or thoracic spine arthritis presented a
disability picture unusual enough to render the application of the
rating schedule impractical. Secretary\'s Br. at 15.

Section 3.321(b)(1), which provides an avenue for additional review of
the exceptional case, states:

**\[W\]here the schedular evaluations are found to be inadequate, the
Under Secretary for Benefits or the Director, Compensation and Pension
Service, upon field station submission, is authorized to approve on the
basis of the criteria set forth in this paragraph an extra-schedular
evaluation commensurate with the average earning capacity impairment due
exclusively to the service-connected disability or disabilities. The
governing norm in these exceptional cases is: A finding that the case
presents 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.**

38 C.F.R. § 3.321(b)(1) (2002). Extraschedular rating consideration is a
component of the appellant\'s claim for an increased rating. *See
Bagwell v. Brown*, 9 Vet.App. 337, 339 (1996); *Floyd v. Brown*, 9
Vet.App. 88, 96 (1996) (stating that extraschedular rating consideration
is \"always part\" of claim for schedular rating-increase claim). As the
Court previously has held, the Board is obligated to consider the
applicability of extraschedular ratings to a claimant\'s
increased-rating case. *Floyd, supra.* In circumstances where the Board
does not refer a claim for extraschedular review, \"the Board must
provide an adequate statement of reasons or bases for its decision not
to do so.\" *Colayong v. West*, 12 Vet.App. 524, 537 (1999); *see also
Bagwell,* 9 Vet.App. at 339; *Kellar v. Brown*, 6 Vet.App. 157, 161
(1994) (remanding for Board\'s failure to provide adequate statement of
reasons or bases regarding applicability of 38 C.F.R. § 3.321(b)(1)).

In the decision on appeal, the Board concluded that the evidence of
record did not support referral of the appellant\'s back disabilities
for extraschedular consideration. Then, in remanding his TDIU-rating
claim, the Board acknowledged that \"additional development\" was
necessary and ordered the RO to investigate several specific
inconsistencies in the record. R. at 18. Among other tasks, the RO was
ordered to

2\. \[O\]tain the veteran\'s Chapter 31 vocational rehabilitation folder
and associate it with the claims folder.

3\. \[A\]scertain whether the veteran is in receipt of \[Social Security
Administration\] disability benefits and obtain copies of any
determination and/or awards made on the veteran\'s behalf as well as the
medical records relied upon concerning such.

4\. \[A\]sk the veteran to clarify whether his employment with True
Value Hardware was, in fact, his employment with Cotter and Company or
\[whether\] they were different jobs with different employers. The
veteran should also clarify his April 1992 statement that he was forced
to leave four jobs.

5\. \[A\]sk Cotter and Company the reason for the veteran\'s resignation
in 1994. The RO should also ascertain whether the veteran sustained any
on-the-job injuries while working at the True Value Hardware
distribution center or elsewhere after service and whether he filed any
claims for Workers\' Compensation benefits in connection with injuries
during post-service employment . . . \[T\]he RO should request copies of
any such medical records, as well as any decision and the medical
records relied upon in awarding the veteran disability benefits from any
State Workers\' Compensation agency.

*Seth D. Brambley*, BVA 00-15003, at 19-20 (May 30, 2001). As the terms
of the remand order make clear, the Board did not consider evidence as
to the appellant\'s employment and medical record sufficiently complete
to enable it to adjudicate the TDIU claim properly and fairly.

It is difficult to understand how the Board can maintain these divergent
positions concerning the completeness of the record. With respect to
extraschedular consideration, the Board found the record sufficient to
conclude that the appellant\'s service-connected disabilities do not
show a \"marked interference with employment,\" 38 C.F.R. § 3.321(b)(1).
Nevertheless, the Board concluded that additional employment and medical
information was necessary to adjudicate fairly the TDIU claim. Although
it is well settled that extraschedular consideration and TDIU claims are
not necessarily \"\'inextricably interwined,\'\" *Colayong,* 12 Vet.App.
at 537; *see Kellar*, 6 Vet.App. at 162, here both adjudications require
*a complete picture* of the appellant\'s service-connected disabilities
and their effect on his employability. 38 C.F.R. §§ 3.321(b)(1), 4.16;
*see also* 38 C.F.R. §§ 4.1, 4.2, 4.10 (2002). Thus, it was premature
for the Board to decline extraschedular consideration where the record
was significantly incomplete in a number of relevant areas probative of
the issue of employability. Therefore, on remand, the Board must make
the requisite findings of fact and provide an adequate statement of
reasons or bases on the issue of whether referral of the extraschedular
consideration issue is warranted in light of the terms of the TDIU
remand order.

The Court will not at this time address the other arguments and issues
raised by the appellant. *See Best v. Principi,* 15 Vet.App. 18, 20
(2001) (per curiam order) (\"A narrow decision preserves for the
appellant an opportunity to argue those claimed errors before the Board
at the readjudication, and, of course, before this Court in an appeal,
should the Board rule against him.\").

The Board\'s inconsistent treatment of the appellant\'s record is not
altogether surprising given the ambiguity within the disability ratings
regulations. Indeed, this Court has noted the absence of guidelines for
assigning ratings in extraschedular cases and for TDIU claims. *See
Floyd,* 9 Vet.App. at 97 (noting that 38 C.F.R. § 3.321 does not include
criteria or guidance for assigning particular extraschedular rating
percentages); *Vettese v. Brown*, 7 Vet.App. 31, 35 (1994) (noting that
TDIU claims focus on \"\'subjective\'\" factors not considered by
ratings schedule).

The need to streamline and clarify the regulations was a major topic of
discussion at the Court\'s Seventh Judicial Conference in September
2002. During the conference, the VA Under Secretary for Benefits
summarized the efforts of the Secretary to revise, clarify, and
restructure the C&P regulations in order to simplify them and make them
more \"user friendly\" for veterans, their representatives, and ROs. As
to the two issues addressed in this case, one possible avenue is to
combine provisions for extraschedular ratings and a TDIU rating into a
single regulation applying a continuum of disability. Such an approach
might help avoid inconsistent application of the two rules.

**III. CONCLUSION**

Upon consideration of the forgoing, the May 30, 2001, BVA decision is
VACATED and the matter is REMANDED for further adjudication consistent
with this opinion. On remand the appellant is free to proffer his
arguments and additional evidence to the Board, and the Board must
address any such arguments or evidence. *See Kay v. Principi,* 16
Vet.App. 529, 534 (2002); *Kutscherousky v. West,* 12 Vet.App. 369, 372
(1999) (per curiam order) (on remand, appellant free to submit
additional evidence and argument). \"A remand is meant to entail a
critical examination of the justification for the decision. The Court
expects that the BVA will reexamine the evidence of record, seek any
other evidence the Board feels is necessary, and issue a timely,
well-supported decision in this case.\" *Fletcher v. Derwinski,* 1
Vet.App. 394, 397 (1991); *see also* 38 U.S.C. §§ 5103(a), 5103A. The
Board shall proceed expeditiously. *See* Veterans\' Benefits Improvement
Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (found at
38 U.S.C. § 5101 note) (requiring Secretary to provide for \"expeditious
treatment\" of claims remanded by the Board or Court); *see also Drosky
v. Brown,* 10 Vet.App. 251, 257 (1997).

STEINBERG, *Judge*, concurring: For the reasons stated in the Court\'s
opinion, I join in the Court\'s opinion vacating the Board of Veterans\'
Appeals (Board) decision and remanding the matter for further
proceedings. However, I would also hold that the Board committed certain
other errors warranting remand.

First, regarding the matter of referral for extraschedular consideration
pursuant to 38 C.F.R. § 3.321(b)(1), the Board did not address in its
statement of reasons or bases certain evidence favorable to the veteran.
The Board is required to consider all evidence of record and to
consider, and discuss in its decision, all \"potentially applicable\"
provisions of law and regulation. *Schafrath v. Derwinski*, 1 Vet.App.
589, 593 (1991); *see* 38 U.S.C. § 7104(a); *Weaver v. Principi*, 14
Vet.App. 301, 302 (2001) (per curiam order); *Sanden v. Derwinski*, 2
Vet.App. 97, 100 (1992). The Board is also required to include in its
decision a written statement of the reasons or bases for its findings
and conclusions on all material issues of fact and law presented on the
record; that statement must be adequate to enable an appellant to
understand the precise basis for the Board\'s decision, as well as to
facilitate review in this Court. *See* 38 U.S.C. § 7104(d)(1); *Allday
v. Brown*, 7 Vet.App. 517, 527 (1995); *Gilbert v. Derwinski*,
1 Vet.App. 49, 56-57 (1990). To comply with this requirement, the Board
must analyze the credibility and probative value of the evidence,
account for the evidence that it finds persuasive or unpersuasive, and
provide the reasons for its rejection of any material evidence favorable
to the claimant. *See Caluza v. Brown*, 7 Vet.App. 498, 506 (1995),
*aff\'d per curiam*, 78 F.3d 604 (Fed. Cir. 1996) (table); *Gabrielson
v. Brown*, 7 Vet.App. 36, 39-40 (1994); *Gilbert*, *supra*.

As argued by the appellant, the Board failed to discuss in its analysis
the finding contained in a 1999 VA compensation and pension (C&P)
social-worker report that the veteran should be \"considered as
unemployable by any definition of the term\" (Record (R.) at 311).
Certainly, a statement that relates directly to the issue of the
veteran\'s employability should be discussed when determining whether
his case should be referred to the Director of the C&P Service for
extraschedular consideration under 38 C.F.R. § 3.321(b). Additionally,
the Board failed to mention that the veteran had been assigned a Global
Assessment of Functioning (GAF) score of 40 in that same September 1999
C&P social‑worker report (R. at 311). The Board thus did not carry out
its duty to analyze the probative value of that GAF score and to provide
any reasons for its rejection of that evidence. *See Caluza,
Gabrielson,* and *Gilbert,* all *supra*. That GAF score may be
indicative of a high level of occupational impairment, *see Richard
(Mary) v. Brown*, 9 Vet.App. 266, 267 (1996) (recognizing that GAF score
of 50 (signifying considerably less occupational impairment than GAF
score of 40) indicated \"serious impairment in . . . occupational . . .
functioning\"), and is a significant factor in determining the
veteran\'s capacity for self support, *see Bowling v. Principi*,
15 Vet.App. 1, 14 (2001) (remanding because, inter alia, Board, in
adjudicating unemployability claim, failed to address evidence of record
that appellant had been assigned GAF score of 50). The Court, therefore,
should also remand the extraschedular-rating matter to the Board to
provide an adequate statement of reasons or bases that discusses the
material evidence not evaluated by the Board that appears to be
favorable to the appellant. *See* 38 U.S.C. § 7104(d)(1); 38 C.F.R.
§ 3.321(b)(1) (2002); *Caluza, Gabrielson,* and *Gilbert,* all *supra*.

In analyzing the appellant\'s entitlement to extraschedular-rating
consideration for each of his service-connected disabilities, the Board
concluded that the evidence in the record did not demonstrate a marked
interference with employment (or frequent periods of hospitalization)
pursuant to 38 C.F.R. § 3.321(b) for either his low back strain or
degenerative arthritis of the thoracic spine. R. at 15, 17; *see* 38
C.F.R. § 3.321(b)(1). However, the Board erred in its application of the
regulation by failing to determine whether the appellant\'s
service-connected disabilities ***as a whole*** entitled him to
extraschedular-rating consideration under § 3.321(b)(1). When VA
evaluates a case for extraschedular consideration, the regulation
directs the examination of the veteran\'s \"average earning capacity
impairment due exclusively to his service-connected disability or
***disabilities***.\" 38 C.F.R. § 3.321(b)(1) (emphasis added). In this
case, although the RO had evaluated the veteran\'s two service-connected
disabilities collectively as a basis for extraschedular consideration,
the Board neglected to do so. Because the Board did not apply
§ 3.321(b)(1) correctly, its statement of reasons or bases was not
adequate as to its basis for upholding the RO\'s decision not to make a
referral for extraschedular consideration. *See* 38 U.S.C. § 7104(a),
(d)(1); 38 C.F.R. § 3.321(b)(1); *Fleshman v. Brown*, 9 Vet.App. 548,
552‑53 (1996); *Allday* and *Gilbert,* both *supra*.

Furthermore, the Board failed to provide an adequate statement of
reasons or bases regarding VA\'s failure to obtain certain medical
records (\"YRMC\" records) that were specifically identified by the
appellant in an April 1999 statement (R. at 244) that he submitted to
the RO. The Board stated merely: \"Although it appears that he may have
identified treatment records for two outpatient visits at \'YRMC\' in
late 1998 and that the records of such visits may not be in the file,
subsequent outpatient records have been obtained and the veteran was
afforded a VA spinal examination in August 1999.\" R. at 13. That
statement is inadequate to enable the appellant to understand why the
Board did not obtain, or at least seek to obtain, those records that
were specifically identified by the appellant. *See Caluza,
Gabrielson,* and *Gilbert,* all *supra*; *see also Godwin v. Derwinski*,
1 Vet.App. 419, 425 (1991) (holding that under prior 38 U.S.C. §§
4104(d)(1) and 5107(a) VA is obligated to respond to specific \"request
for VA assistance one way or the other\").

Additionally, the Board violated the new section 5103A duty-to-assist
provisions enacted in the Veterans Claims Assistance Act of 2000, Pub.
L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), regarding those
records. New section 5103A provides, in pertinent part:

> **§ 5103A. Duty to assist claimants**
>
> **(a) [Duty To Assist]{.smallcaps}. -- (1) The Secretary shall make
> reasonable efforts to assist a claimant in obtaining evidence
> necessary to substantiate the claimant\'s claim for a benefit under a
> law administered by the Secretary.**

**. . . .**

> **(b) [Assistance in Obtaining Records]{.smallcaps}. -- (1) As part of
> the assistance provided under subsection (a), the Secretary shall make
> reasonable efforts to obtain relevant records (including private
> records) that the claimant adequately identifies to the Secretary and
> authorizes the Secretary to obtain.**
>
> **(2) Whenever the Secretary, after making such reasonable efforts, is
> unable to obtain all of the relevant records sought, the Secretary
> shall notify the claimant that the Secretary is unable to obtain
> records with respect to the claim. Such a notification shall\--**
>
> **(A) identify the records the Secretary is unable to obtain;**
>
> **(B) briefly explain the efforts that the Secretary made to obtain
> those records; and**
>
> **(C) describe any further action to be taken by the Secretary with
> respect to the claim.**

38 U.S.C. § 5103A (a)(1), (b)(1)-(2). In this case, the Secretary did
not comply with the provisions of this section. Although the appellant
identified \"YRMC\" records in his April 1999 letter (R. at 244), the
Board did not obtain these records. The Board reasoned that the failure
of the Secretary to obtain the \"YRMC\" records was cured by the
subsequent gathering of outpatient records and the provision of a VA
medical examination. R. at 13. However, section 5103A does not provide
that this failure can be cured; rather, as is evident from the
provisions quoted above, section 5103A(b)(2) provides for a
***specific*** course of Secretarial action when a potentially
applicable record is identified by a claimant and when it is
unobtainable. There is in the record on appeal no indication either of
VA\'s \"reasonable efforts\" to obtain \"YRMC\" records or of VA\'s
having notified the veteran of the reason for its failure to obtain such
records. *See* 38 U.S.C. § 5103A(b)(2); *see also Godwin, supra*.
Therefore, the case should be remanded on this ground as well.