Citation Nr: 1113058 Decision Date: 04/01/11 Archive Date: 04/13/11 DOCKET NO. 05-02 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an extraschedular evaluation for post operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E.M. Evans INTRODUCTION The Veteran had active duty service from May 1979 to July 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the claim sought. The claim was certified for appeal by the Columbia, South Carolina, RO. The Board remanded the claim in April 2008 for further development, including providing a new VA examination. In June 2009, the Board denied entitlement to a schedular rating in excess of 10 percent from October 22, 2003 to October 1, 2008; and denied entitlement to a schedular rating in excess of 40 percent for the period since October 2, 2008. The Veteran did not appeal that decision, and hence it is final. 38 U.S.C.A. § 7104 (West 2002). In the June 2009 decision, the Board also remanded the claim of entitlement to an extraschedular evaluation for post-operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy. The claim is again before the Board for appellate review. FINDINGS OF FACT 1. The case was referred to the Director of the Compensation and Pension Service for consideration under 38 C.F.R. § 3.321(b)(1) who found no entitlement to an extraschedular evaluation was warranted. 2. The symptoms presented by the Veteran's post operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy are fully contemplated by the rating schedule, they have not required frequent hospitalization, and there is no independent evidence showing that the average impairment produced by the disability is in excess of that contemplated by the evaluations assigned. CONCLUSION OF LAW The criteria for entitlement to extraschedular evaluations for post operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1) (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act The requirements of the Veterans Claims Assistance Act of 2000 have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in correspondence dated in November 2003 of the information and evidence needed to substantiate and complete a claim. VA did fail to fully comply with the provisions of 38 U.S.C.A. § 5103 prior to the rating decision in question for the claim on appeal. Specifically, VA did not inform the Veteran prior to the July 2004 statement of the case of the criteria used to rate his disorder, and VA did not inform him how effective dates are assigned until May 2008. His claim was readjudicated in a January 2011 statement of the case. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless. Notice errors may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. 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 a statement of the case or a supplemental statement of the case, is sufficient to cure a timing defect). In this case, the Veteran's claim was remanded for the issuance of proper VCAA notice, and the issue was readjudicated after proper notice was provided. Therefore, the Board finds no prejudice based on lack of notice. VA fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate the claim, including VA medical records, and, as warranted by law, affording VA examinations. There is not a scintilla of evidence that any VA error in notifying or assisting the appellant reasonably affects the fairness of this adjudication. Indeed, the appellant has not suggested that such an error, prejudicial or otherwise, exists. Hence, the case is ready for adjudication. II. Factual Background and Legal Analysis The Board has reviewed all the evidence in the Veteran's claims file, which includes his written contentions, service treatment and personnel records, private and VA medical records, VA examination reports, and lay statements. Although the Board has an obligation to provide adequate reasons and bases supporting this 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 what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). The present appeal involves the Veteran's claim that the severity of his service-connected post operative residuals of a right L5-S1 partial hemilaminectomy and diskectomy warrant an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). In June 2009, the Board remanded the question of entitlement to an extraschedular evaluation for referral to the Under Secretary for Benefits or the Director of Compensation and Pension Services. In doing so, the Board noted that the Veteran claimed that his spinal disability had caused a significant impact on his ability to work, to include missing 14 days of work every two months. An extraschedular disability evaluation 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) (2010). In Thun v. Peake, 22 Vet App 111 (2008), the United States Court of Appeals for Veterans Claims laid out a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first 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 as "governing norms." Third, if the rating schedule is inadequate to evaluate a claimant'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 claimant's disability picture requires the assignment of an extraschedular rating. The RO submitted the Veteran's claim to the Director of Compensation and Pension Service (Director) for extraschedular consideration. In a December 2009 determination, the Director acknowledged the Veteran's contentions of flare-ups of his spinal disability every couple of months which prevented him from working. The Director noted that in the October 2008 VA examination, the Veteran indicated that he was in constant pain in his lower back radiating to his thighs. The examination further noted severe limitation of motion, muscle spasm, and decreased strength. A neurological examination was assessed as normal. The Director noted that the Board had requested in its June 2009 remand, that the Veteran submit evidence documenting sick time from work or physician's notes provided to his employer. Significantly, the Veteran failed to submit the requested evidence. The Director stated that based on the available medical evidence and in the absence of evidence showing the amount and asserted frequency of the Veteran's time lost from work, entitlement to an extraschedular evaluation for post-operative residuals of a lumbar hemilaminectomy and diskectomy was not warranted. The Director further noted that in the event that evidence is received from the Veteran concerning his absences from work, the claim should be referred back for a reconsideration of entitlement to an extra-schedular evaluation. The Board must make its own determination as to whether an extraschedular evaluation is warranted for the Veteran's service-connected disability. With respect to the first prong of Thun, the Board finds the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected post-operative residuals of a lumbar hemilaminectomy and diskectomy are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability and the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology throughout the appeal period. The Board further finds that the disability rating itself is recognition that industrial capabilities are impaired. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Finally, the Veteran's failure to provide evidence from his employers corroborating the asserted quantity of lost time from work raises grave questions as to the credibility of his assertions. Accordingly, the Board finds that the preponderance of the evidence is against a finding that the Veteran's service-connected post-operative residuals of a lumbar hemilaminectomy and diskectomy cause impairment with employment over and above that which is contemplated in the assigned schedular rating. The Board agrees with the Director that an extraschedular disability evaluation pursuant to 38 C.F.R. 3.321(b)(1) is not warranted for all the reasons described above. ORDER Entitlement to an extraschedular evaluation for post-operative residuals of a lumbar hemilaminectomy and diskectomy is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs