Citation Nr: 1219703 Decision Date: 06/05/12 Archive Date: 06/13/12 DOCKET NO. 06-15 250 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement a separate evaluation for a genitourinary disability as secondary to service-connected degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an extra-schedular disability evaluation in excess of 40 percent for DDD of the lumbar spine. 3. Entitlement to a total disability evaluation based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher Murray, Counsel INTRODUCTION The Veteran had active military service from April 1992 to November 1994. This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. This case was brought before the Board in September 2011, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The requested development having been completed, the case is once again before the Board for appellate consideration of the issue on appeal. FINDINGS OF FACT 1. The competent evidence of record does not indicate the Veteran experiences genitourinary symptomatology as a manifestation of his service-connected DDD of the lumbar spine. 2. The Veteran's lumbar spine disability results in marked interference with employment and thus presents an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. 3. The competent evidence of record indicates the Veteran's service-connected disability renders him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a separate evaluation for genitourinary symptomatology as a manifestation of his service-connected DDD of the lumbar spine have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2011). 2. The disability picture presented by the Veteran's service-connected lumbar spine disability warrants the assignment of 60 percent rating on an extra-schedular basis. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.321 (2011). 3. The criteria for a total disability evaluation based on individual unemployability due to service-connected disability have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340 , 3.341, 4.16, 4.19 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In the instant case, the Veteran received notification in July 2005 prior to the initial award of service connection, with additional notice having been sent in August 2010 and November 2011. These notice letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded multiple VA examinations addressing his service-connected lumbar spine disability. These examinations are adequate for the purposes of the instant appeal as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's disability. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board observes the instant case was remanded in September 2011 for additional development. Specifically, the Board determined the Veteran should be provided additional notice, which was sent in November 2011, and a VA genitourinary examination. The requested examination was scheduled in November 2011. However, the Veteran failed to report to the scheduled examination and has not provided cause for doing so. As such, the Board will proceed based on the evidence of record. Therefore, there has been substantial compliance with the September 2011 remand, and adjudication of the instant case may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). I. Initial Separate Evaluation for Genitourinary Symptomatology Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks an initial separate evaluation for genitourinary manifestations of his service-connected degenerative disc disease (DDD) of the lumbar spine. Pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), Note (6), neurological manifestations of spine disabilities, including urinary dysfunction, are to be evaluated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a. With respect to the current claim, a June 2006 VA examination report notes the Veteran's DDD of the lumbar spine results in moderate effects on toileting, but provides not further discussion of associated symptomatology. According to a January 2010 VA examination report, urinary symptoms, including urgency and frequency, were noted to be not "unrelated" to the underlying DDD of the lumbar spine. The comment was included in the "Review of Symptoms" portion of the examination report and was not accompanied by objective testing that address the symptoms and/or severity of any genitourinary disability that would allow the Board to assign a separate evaluation. Finally, as noted above, pursuant to a Board remand, the Veteran was scheduled for a VA examination in November 2011 to address whether the Veteran's lumbar spine disability is manifest by genitourinary symptomatology. However, the Veteran failed to report for this examination and, therefore, the requested information pertaining to the instant appeal was not obtained. Dysfunctions of the genitourinary system are generally evaluated based on symptoms of voiding dysfunction, urinary frequency and obstructed voiding. See 38 C.F.R. § 4.115a (2011). Given the evidence currently of record, the Board is unable to determine whether the Veteran suffers a genitourinary disability as a manifestation of his service-connected DDD of the lumbar spine. Even assuming arguendo that such a manifestation exists in the instant case, the evidence of record does not allow the Board to appropriately assign a disability evaluation for the Veteran's genitourinary symptomatology. The Veteran failed to report to the scheduled VA examination intended to obtain this required information. As such, based on the evidence of record, the preponderance of the evidence is against a finding that a separate compensable evaluation is warranted for genitourinary manifestations of the Veteran's service-connected DDD of the lumbar spine at any point during the appeal period. See Fenderson, supra. Accordingly, the benefit of the doubt rule does not apply, and the Veteran's claim for a separate compensable evaluation for genitourinary manifestations of service-connected DDD of the lumbar spine must be denied. See 38 U.S.C.A. § 5107 (West 2002). II. Extra-schedular Evaluation According to the regulation, an extra-schedular 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). There is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Thun v. Peake, 22 Vet App 111 (2008). 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 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, a veteran's disability picture requires the assignment of an extra-schedular rating. In this case, the Board has already referred to the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether this Veteran's disability picture requires the assignment of an extra-schedular rating. See August 2010 Board remand. As such, the Board has already determined that the first two inquiries are answered in the affirmative. In March 2011, the Director of Compensation and Pension Service denied entitlement to an extra-schedular rating for his lumbar spine disability, concluding that there was no unusual or exceptional disability pattern that rendered application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1). As such, the only question before the Board is whether an extra-schedular rating should be assigned. As notedabove, the Board has previously determined there is evidence presenting such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected disability are inadequate, and that his disability picture exhibits other related factors such as those provided by the regulation as "governing norms." The Board must consider all of the pertinent medical evidence as well as the Veteran's individual circumstances in the determination of whether an extra-schedular rating is warranted. Significantly to the issue of an extra-schedular evaluation, according to a January 2010 VA examination report, the VA examiner noted that the Veteran had marked limitation of lumbar motions with increased pain levels with attempted activity especially that of a repetitive nature. The examiner reported that according to the requirements as set forth by the U.S. Department of Labor, the Veteran was not capable of a medium or heavy occupation, and that with respect to a light occupation, the Veteran could not be ambulatory for two thirds of an eight hour work day. The examiner further noted he was not capable of carrying or lifting 15 pounds on a frequent basis or 25 pounds occasionally and was therefore not qualified to engage in that level of work. Regarding a sedentary occupation, the examiner noted that even though he could probably handle seven pounds on a frequent basis, the Veteran was not able to sit for two thirds of an eight hour work day as would be required by the job description. The Board notes that the Veteran has been assigned the maximum 40 percent rating based on limitation of motion of the lumbar spine under the General Rating Formula. He has previously been denied an increased rating on a schedular basis because the General Rating Formula requires ankylosis of the lumbar spine or entire spine for a higher rating. 38 C.F.R. § 4.71a. Ankylosis has not been found in the instant case. In light of the clinical picture in this case as considered with the Veteran's prior work history and industrial impairment, i.e., his total disability picture, the Board agrees with the Veteran and finds that his lumbar spine disability presents an exceptional or unusual disability picture because it is productive of more than the interference with employment contemplated in his current 40 percent rating, thereby rendering impractical the application of the regular schedular standards. Based on a careful analysis of the lay and medical evidence, specifically the January 2010 VA examiner's medical opinion that the Veteran is precluded from light, moderate or heavy work, and could perform sedentary work no more than one-third of a typical workday, the Board concludes that the Veteran's lumbar spine disability warrants a 60 percent evaluation on an extra-schedular basis under Diagnostic Code 5243 and the General Rating Formula, even though the schedular criteria of ankylosis (the only basis for a schedular evaluation in excess of 60 percent) are not present. In reaching this conclusion, the Board has considered the Veteran's reported increased pain on repetitive motion. Accordingly, for the reasons discussed above, a 60 percent rating is warranted on an extra-schedular basis. To that extent, the appeal is granted. See 38 C.F.R. § 3.321(b)(1) (2011). III. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2011). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran's only service-connected disability is degenerative disc disease of the lumbar spine. As discussed immediately above, the Board has assigned an extra-schedular evaluation of 60 percent for this disability. Therefore, the Veteran is eligible to receive TDIU benefits on a schedular basis. Id. For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disability renders him unable to secure and follow a substantially gainful occupation. Significantly, a January 2010 VA examination report notes the Veteran had marked limitation of lumbar motions with increased pain levels with attempted activity especially that of a repetitive nature. The examiner opined that the Veteran was not capable of a medium or heavy occupation, and that with respect to a light occupation, he could not be ambulatory for two thirds of an eight hour work day. The examiner further noted he was not capable of carrying or lifting 15 pounds on a frequent basis or 25 pounds occasionally and was therefore not qualified to engage in that level of work. Regarding a sedentary occupation, the examiner noted that even though he could probably handle seven pounds on a frequent basis, the Veteran was not able to sit for two thirds of an eight hour work day as would be required by the job description. The Board notes that the January 2010 VA examination report does not indicate the Veteran is precluded from all employment, but rather notes the Veteran is capable of some sedentary employment. However, a TDIU rating is warranted where the Veteran's service-connected disability prevents the Veteran from following a substantially gainful occupation. Based on the January 2010 VA examination report, the Veteran's service-connected disability allows him to work no more than one-third of a typical workday in sedentary employment. Such employment is not, in the Board's view, equivalent to substantially gainful employment. As such, the Board concludes that an award of TDIU is warranted, under 38 C.F.R. § 4.16(a). The benefit sought on appeal is accordingly granted. ORDER A separate compensable evaluation for genitourinary manifestations of service-connected DDD of the lumbar spine is denied. An extra-schedular evaluation of 60 percent for DDD of the lumbar spine is granted, subject to the laws and regulations governing the payment of monetary benefits. A TDIU evaluation is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs