Citation Nr: 1114968 Decision Date: 04/15/11 Archive Date: 04/21/11 DOCKET NO. 07-35 466 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an extraschedular disability rating in excess of the previously assigned 40 percent schedular disability rating for service-connected degenerative disc disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Michael A. Pappas, Senior Counsel INTRODUCTION The Veteran had active military service from October 1943 to March 1946, and from September 1950 to June 1968. This claim comes before the Board of Veterans' Appeals (Board) on appeal from decisions of the Department of Veterans Affairs (VA), Waco, Texas Regional Office (RO). When the Veteran's claim was last before the Board in December 2009, the Board denied entitlement to a schedular disability rating in excess of 40 percent for his service-connected degenerative disc disease of the lumbar spine, but remanded the issue of entitlement to an extraschedular disability rating for additional development to include referral to the Under Secretary for Benefits or the Director, Compensation and Pension (C&P) Service for consideration. Following the completion of the requested development, the case was returned to the Board and is now ready for further appellate consideration. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in August 2009. A transcript of the hearing is in the record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The schedular evaluation assigned for service-connected degenerative disc disease of the lumbar spine adequately encompasses the nature and extent of such disability, including pertinent symptoms and manifestations thereof, and fully compensates the Veteran for the level of disablement shown to result. CONCLUSION OF LAW The criteria for the assignment of an extraschedular evaluation for service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.7 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim for an extraschedular evaluation for service-connected degenerative disc disease of the lumbar spine, the Board is required to ensure that the VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. The notification obligation in this case was accomplished both generally and specific to the extraschedular issue by way of the RO/AMC's letters to the Veteran and his representative dated in December 2006, May 2008, and February 2010. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). On March 3, 2006, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id., at 486. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. The Board finds that VA has met these duties with regard to the claim adjudicated on the merits in this decision. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in December 2006, May 2008, and February 2010 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the December 2006, May 2008, and February 2010 letters informed him about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in December 2006, May 2008, and February 2010, prior to the initial decisions including the issue of entitlement to an extraschedular rating that is the subject of this appeal. As to any timing deficiency with respect to this notice, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Board notes that the Court had previously held that, with respect to claims for an increased rating, a detailed notice, tailored to the specific aspects of each claim, must be provided under 38 U.S.C.A. § 5103(a). Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed that decision, holding that what is required is generic notice of the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and earning capacity, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009); Dingess, 19 Vet. App. at 473. The Board finds that the December 2006, May 2008, and February 2010 letters substantially satisfy the current notification requirements for the claim for an extraschedular rating for the Veteran's low back disability. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Significantly, the Veteran responded to the February 2010 notice letter indicating that he had no other evidence or information to provide relevant to his claim. VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, and the Veteran received a VA examination in July 2007, which was thorough in nature and adequate for the purposes of deciding this claim. The July 2007 VA examination revealed findings that are adequate for rating the Veteran's low back disability and for assessing the adequacy of the schedular rating criteria for that purpose. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. Moreover, at the direction of the Board's December 2009 remand, the Veteran's claim was referred to the Director of C&P Service for consideration of an extraschedular evaluation, resulting in a June 2010 decision. Based on the foregoing, the Board finds that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard. v. Brown, 4 Vet. App. 384 (1993). Factual Background The Veteran's service treatment records show intermittent treatment for problems with the Veteran's lumbosacral spine. In November 1967, chronic lumbar strain and early degenerative disc disease were diagnosed. In September 1968, approximately three months after the Veteran's separation from the military, he underwent a VA examination. At that time, the Veteran stated that during service, he injured his back and subsequently developed chronic low back pain. X-rays were taken of the Veteran's lumbosacral spine and were reported to show some early narrowing of the lumbosacral disc space and some mild lipping at the anterior superior aspect of L-4 and the anterior inferior aspect of L-3. Following the physical examination and a review of the x-rays, the examiner diagnosed probable early disc disease of the lumbosacral spine. In an October 1968 rating action, the RO granted service connection for disc disease of the lumbosacral spine and assigned a 10 percent disability rating under Diagnostic Code 5293, effective from July 1, 1968. In a January 1994 rating action, the RO increased the disability rating for the Veteran's service-connected disc disease of the lumbosacral spine from 20 percent to 40 percent disabling under Diagnostic Code 5293, effective from October 27, 1993. In November 2006, the Veteran requested that his service- connected low back disability be reevaluated for a higher rating. In a private medical statement from R.P.R., M.D., dated in October 2006, Dr. R. stated that the Veteran had complaints of low back pain that radiated down his lower extremity. According to Dr. R., in July 2006, the Veteran underwent surgery for a total right hip replacement and subsequently had medical complications involving his heart. Dr. R. indicated that due to the Veteran's medical problems, he was not a candidate for back surgery. Dr. R. attached private treatment records, dated in April and May 2006. In an April 2006 treatment record, it was noted that an x-ray of the Veteran's lumbosacral spine showed extensive multilevel disc and facet degenerative changes. In a May 2006 treatment record, it was reported that a recent magnetic resonance imagining (MRI) showed that the Veteran had some mild stenosis at L2-3. In a private medical treatment record from the Texas Spine and Joint Hospital, dated in May 2007, B.D., M.D., stated that she had given the Veteran lumbar transforaminal epidural injections at the right L3 spinal nerve at L3-4, and the right L4 spinal nerve at L4-5. The diagnosis was lumbar radiculopathy. A VA examination was conducted in July 2007. At that time, the examiner stated that the Veteran was status post a lumbar laminectomy discectomy with fusion in the remote past. The examiner indicated that according to the Veteran, he had daily mechanical low back pain. The Veteran denied any episodes of flare-up pain. The examiner noted that the Veteran complained of symptoms consistent with neurogenic claudication and right leg sciatic paresthesias and dysthesias, which occurred three to four times a day and were momentary in nature. The Veteran denied symptoms of cauda equine syndrome. He used a cane to ambulate. The Veteran had been retired for over 20 years. He could complete light housekeeping and similar household maintenance chores that did not require bending or twisting at the waist or any lifting. The Veteran's walking distance was limited to 60 to 70 feet before he had to sit down and rest due to his neurogenic claudication symptoms. Upon physical examination, the Veteran walked slowly and deliberately with an antalgic gait, with his waist flexed forward approximately 30 degrees, consistent with someone who had spinal stenosis. Examination of the thoracolumbar spine showed that there was minimal tenderness to palpation of the L5-S1 spinous processes and of the bilateral lumbar paravertebral muscles. There was no sacroiliac tenderness or sciatic notch tenderness. Upon neurological examination, sensation was intact to light touch for all dermatomes of bilateral lower extremities. In regard to motor strength, the Veteran was 5/5 for all muscle groups of bilateral lower extremities. Reflexes were 1/3 and symmetric. Babinski was negative. Straight leg raising was negative both sitting and lying. In regard to range of motion, forward flexion was to 60 degrees, extension was to 10 degrees, left lateral flexion was to 20 degrees, right lateral flexion was to 10 degrees, left lateral rotation was to 30 degrees, and right lateral rotation was to 20 degrees. The range of motion was the same pre-repetitive and post-repetitive except for the left lateral rotation which was reduced from 30 to 26 degrees post-repetitive. The Veteran complained of pain on the extremes of motion in each plane. X-rays of the Veteran's lumbosacral spine were reported to show scoliosis of the lumbar spine to the left, with considerable pelvic tilt suggesting that the left leg was shorter than the right. There were changes of degenerative disc disease at all levels except the L1-L2 level. Following the physical examination and a review of the Veteran's x-rays, the examiner diagnosed the Veteran with lumbar degenerative disk and facet disease, symptomatic spinal stenosis at L2-3. Private medical records from Dr. D.L.G., dated from April to July 2008, show that in April 2008, Dr. G. stated that he was treating the Veteran for low back pain. According to Dr. G., the Veteran wore a TENS unit and ambulated with a cane. The Veteran had undergone selective epidural blocks in June 2006 and May 2007. He denied any bowel or bladder symptoms except for mild to moderate constipation. Upon physical examination, the Veteran walked with a steady gait. Lumbar range of motion was limited by pain. The Veteran could flex and touch his knees. Extension was limited to approximately 10 to 15 degrees. The Veteran's worst pain was generated with extension and extension coupled with rotation. There was no clubbing, cyanosis, or edema of the extremities. Straight leg raising was negative. Gross sensation and peripheral pulses were intact. The pertinent diagnosis was lumbar spondylosis with facet syndrome. Dr. G. directed the Veteran to apply a Lidoderm patch to the affected area. The records further reflect that in July 2008, the Veteran underwent a lumbar medial branch block at L3 and L4, and a L5 dorsal ramus block. He also underwent a physical examination. Dr. G. stated that the Veteran had chronic axial low back pain and was not a surgical candidate due to his cardiac condition. According to Dr. G., the Veteran was severely debilitated. Upon physical examination, Dr. G. stated that the Veteran's lumbar range of motion was limited by pain on flexion and extension. In August 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. At that time, he stated that due to his service-connected low back disability, he was extremely limited in his activities. The Veteran indicated that he could get around his house without a cane only if he touched the walls or furniture. He noted that he received epidural shots and took medication to relieve his low back pain. According to the Veteran, he also applied Lidoderm patches to the affected areas. He provided a list of medications that he took on a regular basis. The Veteran stated that because he had a heart attack after his surgery for a total right hip replacement, he was unable to have surgery on his back and had to live with chronic low back pain. He submitted a medical article regarding alternative therapies for pain relief. At the time of the Travel Board hearing, the Veteran submitted a private medical statement from Dr. D.L.G., dated in August 2009, in which Dr. G. stated that he had been treating the Veteran since April 2008. According to Dr. G., the Veteran had lumbar spondylosis and facet syndrome, with intractable, severe lumbar pain and severe degenerative disc disease. Dr. G. noted that he had prescribed the Veteran pain medication to relieve the low back pain. Dr. G. also stated that the Veteran used a lumbar back brace. By its decision of December 2009, the Board denied the Veteran's claim for an increased schedular evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine, and remanded the matter for referral to the Under Secretary for Benefits or the Director, C&P Service for consideration of an extraschedular evaluation for the Veteran's service-connected low back disability. The basis for the denial was that the current 40 percent rating is the maximum available under the general rating formula for the spine (38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (2010)) unless there is shown either unfavorable ankylosis or objective findings of incapacitating episodes having a total duration of six weeks. The Board explained that there has been no medical evidence of ankylosis of the lumbar spine (unfavorable or otherwise) and that VA examinations as well as private treatment records were silent with respect to any incapacitating episodes. More specifically with respect to "incapacitating episodes," it was found that the medical evidence of record did not show that the Veteran has been prescribed bed rest by a physician and treated by a physician for at least six weeks due to any incapacitating episodes (Note 1 following Diagnostic Code 5243 provides that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.). The basis for the remand was that the Board found that the evidence of record suggests such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1) (2009). Specifically, it was noted that in private medical records, dated in July 2008, Dr. G. stated that the Veteran was severely debilitated due to his low back disability. In a subsequent private medical statement, dated in August 2009, Dr. G. further noted that the Veteran had intractable, severe lumbar pain and severe degenerative disc disease, and used a lumbar back brace. Such extremely painful symptoms and the effects thereof may not adequately be reflected in the schedular rating criteria. The Board recognized that the Veteran has been retired for over 20 years, but conceding that the Veteran's service-connected low back disability presumably interfered with his employment, the criteria for submission for assignment of an extraschedular rating for the Veteran's low back disability pursuant to 38 C.F.R. § 3.321(b)(1) was warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In his June 2010 decision, the Director of C&P Service first noted that he had reviewed the Veteran's claims file and the Board's request for extraschedular evaluation for the service-connected degenerative disc disease of the lumbar spine pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The private treatment reports of Dr. G. were specifically described, including Dr. G.'s conclusions that the Veteran has intractable lumbar pain based upon lumbar spondylosis and facet syndrome accompanied with severe back pain and severe degenerative disc disease. The Director's decision noted that the Veteran's main contention is that he must live in constant pain and must rely on pain medication in lieu of surgery, because surgery is precluded due to a heart condition. It was further noted that although the medication helps somewhat, the Veteran's back pain imposes limitations on activities, including presenting public speeches because of an inability to stand up for long periods of time. In addressing the requirements for an extraschedular evaluation, the C&P Service Director found that the Veteran's report of severe pain is an expected functional limitation that would be normally associated with a severe disability of the lumbar spine. It was found further that the Veteran's low back condition is currently rated on the basis of frequency of incapacitating episodes, and as such, the symptomatology demonstrated in the evidentiary record, such as periods of incapacitation for the low back with pain and loss of motion is appropriately rated under the applicable diagnostic code contained in the regular rating criteria. The decision noted that the Veteran's low back condition could also be considered under the general rating formula for diseases and injuries of the spine, which would approximate the function affected, symptomatology, and anatomical location of the condition. The Director of C&P Service concluded that entitlement to an extraschedular evaluation for the service-connected DDD of the lumbar spine is denied as there is clearly no unusual or exceptional disability pattern that renders application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1). Analysis of the Merits Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Consideration of whether the Veteran is entitled to extraschedular ratings is accomplished by way of 38 C.F.R. § 3.321(b). First, the Board must determine if the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. To do this, the Board or the RO must determine if the criteria found in the rating schedule reasonably describe the claimant's disability level and symptomatology. If this is the case, the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral for extraschedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The Board acknowledges the December 2009 remand and referral for consideration of an extraschedular evaluation, in which at least the possibility existed that the Veteran's extremely painful lumbar spine disability symptoms and the effects thereof may not adequately be reflected in the schedular rating criteria. Based upon that possibility, and given that the Veteran's service-connected low back disability presumably interfered with his employment (notwithstanding that he had been retired for over 20 years), the Board concedes that the criteria for submission for consideration of an extraschedular rating for the Veteran's low back disability pursuant to 38 C.F.R. § 3.321(b)(1) was appropriate. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Notwithstanding the subsequent denial of an extraschedular evaluation by the Director of C&P Service, the Board must now independently review on appeal that same question - whether the schedular evaluation contemplates the claimant's level of disability and symptomatology, and if so, whether the claimant's exceptional disability picture exhibits other related factors, such as marked interference with employment and frequent periods of hospitalization. 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 Board must determine whether, to accord justice, an extraschedular rating must be assigned. Id. In this instance, the primary inquiry is whether the criteria of Diagnostic Codes 5235 to 5243 reasonably describe the Veteran's disability level and symptomatology. The Board concedes the existence of evidence supporting referral for extraschedular entitlement, namely the Veteran's own testimony and medical opinion evidence referring to the disability in question as debilitating due to pain, complications from medication, and loss of function. In the December 2009 decision to deny a schedular evaluation in excess of 40 percent for degenerative disc disease of the lumbar spine, however, the Board also found that a preponderance of the evidence showed that the pain and all other manifestations of disability were neither productive of unfavorable ankylosis or the requisite incapacitating episodes for a higher evaluation. In making this finding, the Board determined that the pathology for which the Veteran argues that an extraschedular evaluation is warranted (namely extreme pain, use of medication to address the pain, and loss of function) has already been considered because it is clearly contemplated in the schedular criteria. In that regard, the Board is in agreement with the Director of C&P Service in that the Veteran's report of severe pain is an expected functional limitation that would be normally associated with a severe disability of the lumbar spine. The use of medication to reduce pain must also be assumed to be associated. Pain, the use of medication, and loss of function are clearly considered to be part and parcel to an incapacitating episode. The frequency of incapacitating episodes was considered within the schedular criteria, and as such, the symptomatology demonstrated in the evidentiary record with such incapacitation, such as pain and loss of motion, as well as medication taken for relief of such pathology, is appropriately rated under the applicable diagnostic code contained in the regular rating criteria. Neither the Veteran nor his representative has suggested any other evidentiary basis for why the schedular criteria is inadequate, nor is one suggested in the record. Evidence indicating that the Veteran's disability picture is contemplated by the rating schedule outweighs evidence to the contrary, and on that basis, the Board concludes that the assigned 40 percent schedular evaluations under Diagnostic Codes 5235 to 5243 fully compensate the Veteran for his current disability level, without resort to extraschedular consideration. To that end, the Board concludes that an extraschedular rating is unnecessary. In sum, the preponderance of the evidence is against a finding that an extraschedular evaluation for service-connected degenerative disc disease of the lumbar spine is warranted. Additionally, the remand directives were fully completed. See Stegall v. West, 11 Vet. App. 268 (1998). As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); see also, generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). ORDER Entitlement to an extraschedular disability rating in excess of the previously assigned 40 percent schedular disability rating for service-connected degenerative disc disease of the lumbar spine is denied. ____________________________________________ M. SABULSKY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs