Citation Nr: 1209577 Decision Date: 03/14/12 Archive Date: 03/28/12 DOCKET NO. 05-37 169 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an extraschedular rating for residuals of a fracture of the right distal tibia. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to June 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (ROs) in Cleveland, Ohio. The Newark, New Jersey VARO currently has jurisdiction of the claim. The Veteran presented testimony at an RO hearing in May 2006. A transcript of that proceeding is of record. The claim was remanded by the Board in June 2008 for additional development and to address due process concerns. As will be discussed in greater detail below, the actions directed by the Board have been substantially complied with and the matter returned for appellate review. FINDING OF FACT The Director of the Compensation and Pension (C&P) Service has determined that the Veteran is not entitled to an extraschedular evaluation for service-connected residuals of a fracture of the right distal tibia; the Board finds that there is no evidence of marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. CONCLUSION OF LAW The criteria for assignment of an extraschedular rating for residuals of a fracture of the right distal tibia have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.321(b) (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran disagreed with the rating assigned after service connection had been granted and an initial disability rating and effective date had been assigned for his residuals of a fracture of the right distal tibia. Thus the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Notice specific to the extraschedular claim was provided to the Veteran in the October 2005 statement of the case (SOC) and the claim was readjudicated in a May 2009 supplemental SOC (SSOC). Accordingly, the duty to notify has been fulfilled. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (finding that the issuance of a fully compliant notification followed by readjudication of the claim, such as an SSOC, is sufficient to cure a timing defect). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include VA treatment records, afforded the Veteran appropriate examinations to determine the severity of his disability, and afforded the Veteran the opportunity to give testimony before the RO. VA also asked the Veteran on two occasions to provide objective documentation (such as tax records) of the decrease in his income since changing employment from a professional photographer to a truck driver. See letters dated July 2008 and November 2008. The Veteran did not provide a response to either letter. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991). The issue of whether the Veteran was entitled to an extraschedular rating for his residuals of a fracture of the right distal tibia was also referred to the Director of Compensation and Pension (C&P), as instructed in the Board's June 2008 remand. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file, and the Veteran has not contended otherwise. The RO/AMC substantially complied with the Board's June 2008 remand concerning this claim. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board again notes that the Veteran did not provide any documentation to substantiate his allegation that his income was substantially reduced when he quit working as a photographer and became a truck driver such that no VA examination was required. In addition, VA has substantially complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claim at this time. The rating schedule of 38 C.F.R., Part 4 is generally deemed adequate to rate a disability. 38 C.F.R. § 3.321(a) (2011). When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted. 38 C.F.R. § 3.321(b); see Colayong v. West, 12 Vet. App. 524, 536 (1999). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Director of C&P for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. See 38 C.F.R. § 3.321(b)(1) (2011). 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. Id. There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. at 116. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996) (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extra-schedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter...subject to decision by the Secretary shall be subject to one review on appeal to the...Board."). As noted in the introduction, the Board remanded the issue of entitlement to an extraschedular rating for residuals of a fracture of the right distal tibia for additional development. In pertinent part, the Board instructed the RO/AMC to send the Veteran a letter requesting objective documentation (such as tax records) of the decrease in his income since changing employment from a professional photographer to a truck driver; to schedule a VA examination if, and only if, the Veteran submitted the requested documentation; and to refer the case to the Under Secretary for Benefits or the Director, C&P Service for consideration of an extraschedular evaluation. The Board noted that the Veteran was essentially arguing that his disability has resulted in a marked interference with his employment because he had to switch jobs from a professional photographer, earning about $55,000 a year, to a truck driver, earning about $25,000 per year, as a result of not being able to stand for long periods of time. Pursuant to the Board's June 2008 remand, the RO in Huntington, West Virginia, sent the Veteran two letters requesting that he provide objective documentation (such as tax records) of the decrease in his income since changing employment from a professional photographer to a truck driver. See letters dated July 2008 and November 2008. The Veteran did not respond to either letter. The Huntington RO thereafter referred the issue of entitlement to an extraschedular rating for residuals of a fracture of the right distal tibia to the Director of C&P for consideration of whether assignment of an extraschedular rating is warranted under 38 C.F.R. §3.321(b)(1). The requested opinion was provided in March 2009. At this juncture, the Board notes that the Director of C&P initially provided a response in October 2008 that, in pertinent part, indicated that the Veteran was service-connected for residuals of a fracture of the right distal tibia, currently evaluated at the 20 percent rate; for adjustment disorder at the 30 percent rate; and for bilateral metatarsalgia at the 10 percent rate, for a combined 50 percent evaluation. The Director also noted that in June 2008, the Board had denied an increased evaluation above the 20 percent rate for fracture of the tibia and claims for service connection involving the right hip and right knee, and that the Veteran also had several nonservice-connected disabilities, to include poorly controlled diabetes mellitus, coronary artery disease, status post myocardial infarction, hypertension, and hyperlipidemia. The Director acknowledged the Veteran's assertions that he had worked as a photographer for many years but had to quit because he was unable to stand on his feet for prolonged periods of time, and the evidence that indicated the Veteran was working as a truck driver, which had resulted in marked loss of income. The Director incorrectly determined that the July 2008 letter from the RO had not included a request for proof of decreased income such as tax records. In light of this incorrect finding, the Director determined that the claims folder should be returned for consideration of an extraschedular evaluation after another letter that included the necessary information had been sent to the Veteran. In the March 2009 response, the Director reported that he had reviewed the Veteran's claims folder in October 2008 and had returned it to the RO for completion of the development requested by the Board concerning the Veteran's income. The Director again noted the Veteran's nonservice-connected disabilities. The Director reported that the Veteran was requested to provide the necessary documentation for consideration of entitlement to an extraschedular evaluation in November 2008 but failed to do so. Consequently, the Director found that entitlement to an extraschedular evaluation for service-connected residuals of a fracture of the right distal tibia was not warranted. The Board agrees that the evidence does not warrant an extraschedular evaluation for the Veteran's service-connected residuals of a fracture of the right distal tibia. The degrees of disability specified in the rating criteria for disabilities of the knee and leg adequately represent the average impairment in earning capacity resulting from the residual condition and are adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96; see also Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In so finding, the Board acknowledges the Veteran's assertions that he has a Masters Degree in Photography and worked as a professional photographer before he was unable to continue as it required him to stand for long periods, and that his new employment as a truck driver has resulted in a loss of income. The fact remains, however, that he has not described frequent, or any, periods of hospitalization related to the residuals of a fracture of the right distal tibia, or marked, or any, interference with employment. Rather, the Veteran clearly is still able to work. This finding is supported by VA treatment records and several VA examination reports. The Board finds that in reviewing the record, there is no evidence showing that the service-connected residuals of a fracture of the right distal tibia causes marked interference with employment, or frequent periods of hospitalization, rendering impractical the application of the regular rating schedule. See 38 C.F.R. § 3.321(b). In regard to the statements made by the Veteran, a layperson is competent to testify in regard to the onset and continuity of symptomatology, including pain, as this requires only personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran is not competent to opine if his disability is manifested by unusual or exceptional disability pattern that renders application of the regular rating criteria impractical since he is not familiar with the rating criteria; such a detailed finding can only be made by a trained specialist. In this case, the Veteran has not been shown to have medical training, credentials, or other expertise. Based on the foregoing, entitlement to an extraschedular evaluation for residuals of a fracture of the right distal tibia is denied, as there is clearly no unusual or exceptional disability pattern that renders the application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1) (2011). The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although the Veteran has reported some interference with employment, he has never asserted that he is unemployable. Given the foregoing and the fact that the Veteran remains employed, and in the absence of any evidence suggestive of unemployability due to any of the Veteran's service-connected disabilities, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). ORDER An extraschedular rating under 38 C.F.R. §3.321(b)(1) for residuals of a fracture of the right distal tibia is denied. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs