Citation Nr: 1134848 Decision Date: 09/16/11 Archive Date: 09/23/11 DOCKET NO. 06-28 786 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased initial rating for the Veteran's service connection low back disorder on an extraschedular basis, evaluated as 10 percent disabling prior to December 14, 2006, and as 20 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Diliberto, Associate Counsel INTRODUCTION The Veteran had active service from August 1968 to October 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, that denied the benefit sought on appeal. The Veteran appealed that decision and the case was referred to the Board for appellate review. In an April 2007 rating decision the 10 percent evaluation assigned for the Veteran's service-connected low back disorder was increased to 20 percent, effective December 14, 2006. However, as this increase was not a full grant of all benefits possible the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In a December 2009 decision the Board determined that entitlement to ratings for the Veteran's service-connected low back disorder in excess of 10 percent prior to December 14, 2006, and in excess of 20 percent thereafter, were not warranted on a schedular basis. Accordingly, that aspect of the Veteran's claim is no longer on appeal. However, in that same decision the Board determined that the issue of entitlement to an extraschedular rating for the Veteran's service-connected back disorder had to be remanded for further development by the RO/AMC, including referral of the issue to the Director of Compensation and Pension Services. The requested development has been completed to the extent possible and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In that decision the Board also noted that the issue of entitlement to a total disability based on individual unemployability (TDIU) had been raised by the record. The RO appears to have referred this issue to the Director of Compensation and Pension Services, who found that entitlement was not warranted. If the Veteran desires to pursue or appeal that determination he should so notify the Regional Office. FINDINGS OF FACT 1. Pursuant to the December 2009 Board remand and the provisions of 38 C.F.R. § 3.321(b)(1), the VA Director of Compensation and Pension Service (C&P) denied an extraschedular rating for the Veteran's service-connected low back disorder. 2. The evidence of record does not show that the Veteran's service-connected low back disorder presents such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for the assignment of an increased rating for the Veteran's service-connected low back disorder on an extraschedular basis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321(b) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the Veteran's claim on appeal, the Board is required to ensure that the VA's duty to notify and duty to assist obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was met by way of letters from the RO to the Veteran dated April 2005, April 2006, May 2008, January 2009, December 2009 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); Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Board notes that, in the present case, initial notice was issued prior to the November 2005 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and have not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations during the pendency of the appeal. The reports from these examinations reflect that the examiners reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Additional examination is unnecessary, and the Board finds that the RO has satisfied the duty to notify and the duty to assist. Accordingly, it will proceed to a discussion of the merits of the Veteran's appeal. The Veteran first claimed entitlement to service connection for a back condition in March 2005. In a November 2005 rating decision the RO granted entitlement to service connection for that condition and assigned a 10 percent rating effective from March 22, 2005, the day the Veteran first filed his claim. In April 2006 the Veteran submitted a Notice of Disagreement (NOD) with that rating. The RO issued a Statement of the Case (SOC) in June 2006, and that the Veteran filed a Substantive Appeal (VA Form 9) in September 2006. Thereafter, in April 2007, the RO issued an additional rating decision granted entitlement to a 20 percent rating effective from December 14, 2006. As noted above, the Veteran's claim first came before the Board in December 2009, at which time the Board denied entitlement to higher schedular ratings. However, the Board remanded the issue of entitlement to a rating on an extraschedular basis for further development and consideration. The RO/AMC referred to issue to the Director of Compensation and Pension Services, who stated that, given the evidence of record, the Veteran was not entitled to an extraschedular evaluation for that disorder. The RO/AMC agreed with the Director's findings and continued the denial of the benefit sought. Accordingly, the Veteran's claim is once again before the Board. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected condition adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set in the Schedule for Rating Disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Veteran's entire history is reviewed when assigning a disability evaluation, where service connection has already been established, and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. In addition, separate ratings can be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. Ap. 119 (1999). Currently, the Veteran's low back disorder is rated at a 20 percent schedular rating under 38 C.F.R. § 4.71a, Diagnostic Code 5237, effective from December 14, 2006. Prior to December 14, 2006, the condition was assigned a 10 percent schedular rating. For the purpose of demonstrating precisely what symptoms the Veteran's schedular disability rating account for the Board notes that Diagnostic Code 5237 is governed by the General Rating Formula for Diseases and Injuries of the Spine. Such formula states that the diagnostic codes governed by that formula account for whether such disability is with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Specifically, Diagnostic 5237 assigns a disability rating which takes into account the objective medical findings upon examination of the following: range of motion and combined range of motion of the spine, whether there are muscle spasms, guarding or localized tenderness and whether they are severe enough or not severe enough to result in an abnormal gait, abnormal spinal contour, vertebral body fracture, and ankylosis of part of or the entirety of the spine. Furthermore, the General Rating Formula states that any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2010). The VA Schedule of Disability Rating will apply unless there are exceptions or unusual factors that would render its application impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). In addition, the regulations indicate that an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation and "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The Board has reviewed the entirety of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on that evidence needed to substantiate the claim and on what the evidence in the claims file shows or fails to show with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Turning to that evidence the Board notes that private treatment records associated with the claims file date back to 1996. These records indicate that the Veteran underwent ongoing treatment for low back pain, including several nerve block injections and the implantation of a neurostimulator device for pain control in 1996. In October 2005 the Veteran was afforded a VA examination in support of his claim. During that examination the Veteran reported continued back pain since service with a fusion in 1988 and another surgery in 1993. The Veteran described the pain as a dull ache aggravated by prolonged standing, sitting or walking. Upon physical examination the examiner noted several scars along the lower back and mild loss of lumbar curvature. Tenderness at the paravertebral muscle in the L4-5 region was noted. No postural abnormalities were indicated. Range of motion studies revealed flexion from zero to 90 degrees, extension to zero to 30 degrees, left and right lateral flexion from zero to 30 degrees and left and right lateral rotation from zero to 30 degrees. An extra 15 degree of limitation of flexion due to pain was noted. No additional limitations were noted with repetition of movement due to such symptoms as pain, fatigue, incoordination, weakness or lack of endurance. A neurological examination indicated some decreased sensation in the distribution of the lateral femoral cutaneous nerve of the Veteran's left thigh, but no other symptoms. An additional VA examination was performed in December 2006. On physical examination the examiner noted normal gait and posture. Range of motion studies revealed flexion from zero to 70 degrees, extension from zero to 25 degrees, right and left lateral flexion from zero to 30 degrees and right and left lateral rotation from zero to 30 degrees. Pain limited flexion by an additional 10 degrees, resulting in 60 degrees of flexion. On repeated checking the Veteran had pain and fatigue, but no weakness. Motion was limited due to pain as stated above. No tenderness or spasms were felt. A neurological examination indicated sensory loss over the outer, lateral aspect of the left thigh and the dorsal area of the left big toe. Motor examination revealed normal muscle power and tone without atrophy. The examiner determined that the sensory loss with regard to the Veteran's left big toe and ankle reflexes were secondary to the Veteran's diabetic sensory neuropathy. The sensory loss at the anterolateral aspect of the Veteran's left thigh was determined to be due to meralgia paresthetica. In a February 2007 addendum the examiner noted having reviewed the Veteran's claims file. VA and private treatment records from 2007 through 2010 show continued treatment for complaints of back pain. These records indicate that the Veteran reported satisfactory function and pain relief with medication. The Board notes that the Veteran has been received Social Security Disability for his low back since 2002. These records have been thoroughly reviewed, and indicate symptomatology consistent with the findings from the Veteran's most recent VA examination. In April 2011, at the request of the RO/AMC and pursuant to the Board's December 2009 remand, the Director of the Compensation and Pension Services evaluated the Veteran's entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1). The Director discussed the Veteran's service-connected disability and noted the rating assigned. He made note of the Veteran's symptomatology, as demonstrated in his treatment records, and commented on the Veteran's lack of employment and receipt of Social Security benefits. The findings of the Veteran's various VA examinations were also noted. The Director found that the objective evidence did not show any incapacitating episodes. He also noted that no surgical procures had been performed since 1996. Accordingly, the Director stated that while the Veteran had not worked for several years, the evidence of record did not show that the Veteran's low back condition alone prevented him from engaging in all types of work-related activities. The Director also stated that the evidence did not show that the Veteran's low back disorder warranted any evaluation in excess of the 20 percent already assigned, on a schedular or extraschedular basis. Given the evidence as stated above, and after a thorough review of the claims file, the Board finds no basis on which to disagree with the Director's determination. See 38 C.F.R. § 3.321(b)(1) (2010); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Rather, the Board finds that the Veteran's symptomatology and limitation in occupational functioning due to his service-connected low back disorder are reasonably contemplated by the regular Rating Schedule criteria under the first prong of the Thun analysis. In Thun, the Court held that "if the criteria reasonable describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is therefore adequate, and no referral is required." Thun, 22 Vet. App. at 115. A comparison of the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedules shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's primary complaints and symptomatology involving his low back disorder are pain and limitation of motion, both of which are addressed in the applicable criteria. In short, since the rating schedule addresses his symptomatology the first step outlined by the Court in Thun has not been met. See Thun, 22 Vet. App. at 116. The Board does not doubt that limitation caused by the Veteran's service-connected low back disorder has had an adverse impact on his employability. However, loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a) and 4.1. 38 C.F.R. Section 4.1 specifically states that "...the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Moyer v. Derwinski, 2 Vet. App. 289 (1992); Van Hoose v. Brown, 4 Vet. App. 361 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). Consequently, the Board finds that the Veteran's service-connected low back disorder is not manifested by an exceptional or unusual disability picture that renders the application of the regular schedular standards as impractical. As there is a preponderance of evidence against the Veteran's claim the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an extraschedular rating for the Veteran's service-connected low back disorder is denied. ____________________________________________ THOMAS D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs