Citation Nr: 1305307	
Decision Date: 02/13/13    Archive Date: 02/21/13

DOCKET NO.  05-41 283	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan

THE ISSUES

1.  Entitlement to a rating higher than 40 percent for a low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes, including on an extra-schedular basis.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Jessica Cleary, Attorney


WITNESSES AT HEARING ON APPEAL

The Appellant-Veteran and his spouse


ATTORNEY FOR THE BOARD

C. Bruce, Counsel


INTRODUCTION

The Veteran served on active duty in the military from June 1973 to June 1976 and from November 1979 to July 1989.

This case has a lengthy procedural history and comes to the Board of Veterans' Appeals (Board/BVA) from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan.  That decision, in relevant part, increased the rating for the Veteran's low back disability from 20 to 40 percent retroactively effective from June 29, 2004, the date of receipt of his claim for a higher rating for this condition.  And since that was not the maximum possible rating he could receive for this disability, he appealed for an even higher rating.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).

In support of this claim, and others that he also had appealed, the Veteran testified at a videoconference hearing in October 2007 before a Veterans Law Judge (VLJ) of the Board.  However, there was a malfunction in the recording equipment, so the transcript of the proceeding was mostly inaudible.  Consequently, the Board asked him in January 2008 whether he wanted another hearing.  And in response, he indicated in February 2008 that he did, but that he wanted the hearing at the RO with the VLJ there (Travel Board hearing), rather than using the videoconferencing technology like for his prior hearing.  Thus, later in February 2008, the Board remanded this case to schedule him for this additional hearing.  He subsequently had this Travel Board hearing in July 2008 before the undersigned VLJ of the Board, during which he and his wife provided testimony in support of his claim for a higher rating for his low back disability (and concerning the other claims he also had appealed).

The Board later issued a decision in September 2008 granting service connection for cervical spondylitis (a neck disorder).  The Board also assigned separate 10 percent ratings for the Veteran's short-term memory loss and constipation, such that these additional disabilities were no longer rated as part and parcel of the low back disability.  The Board then proceeded to remand the case to obtain additional records concerning his receipt of disability benefits and/or supplemental income from the Social Security Administration (SSA).  38 C.F.R. § 3.159(c)(2). See also Lind v. Principi, 3 Vet. App. 493, 494 (1992); Marciniak v. Brown, 10 Vet.App. 198, 204 (1997).  See, too, Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010) (indicating VA need only obtain relevant SSA records, which, under 38 U.S.C. § 5103A, are those relating to the injury for which the Veteran is seeking VA benefits and have a reasonable possibility of helping to substantiate the claim).  

The AMC issued a decision in March 2009 implementing the Board's decision and assigning the separate 10 percent ratings for the short-term memory loss and constipation retroactively effective from June 24, 2004, the date of receipt of the claim.  The AMC also assigned a 10 percent initial rating for the cervical spondylitis retroactively effective as of that same date.  The Veteran did not, in response, separately appeal these ratings or this effective date.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second Notice of Disagreement (NOD) thereafter must be timely filed to initiate appellate review of the claim concerning "downstream" issues such as the compensation level assigned for the disability and effective date).

In a May 2010 decision, the Board denied the appeal for a schedular rating higher than 40 percent for the service-connected low back disability, remanded the issue of entitlement to an extra-schedular rating for this low back disability, and referred the issue of entitlement to a TDIU to the RO for adjudication in the first instance.

The Veteran then appealed to the U. S. Court of Appeals for Veterans Claims (Court/CAVC).  In a September 2011 memorandum decision, the Court found that the issue of entitlement to a TDIU was part of the Veteran's claim for an increased rating for the service-connected low back disability and was not a new claim.  The Court determined the Board therefore should have remanded, rather than referred, this derivative claim to the RO as the Agency of Original Jurisdiction (AOJ).  

In vacating the Board's May 2010 decision for this reason, the Court cited its holdings in Rice v. Shinseki, 22 Vet. App. 447 (2002).  See also Mayhue v. Shinseki, 24 Vet. App. 273, 281-82 (2011).

Meanwhile, the AMC adjudicated the Board-remanded issue of entitlement to an extra-schedular rating for the low back disability and, in June 2011, issued a supplemental statement of the case (SSOC) regarding this issue, denying the claim even on this additional basis.  The file subsequently was returned to the Board for further appellate consideration.

The Veteran and his attorney submitted additional pertinent evidence in November 2011 and waived the right to have the RO initially consider it.  38 C.F.R. §§ 20.800, 20.1304 (2012).

There was also an outstanding hearing request, however, so the Board remanded the claims to the RO.  The Veteran subsequently had another videoconference hearing before the undersigned in September 2012, during which he and his wife provided testimony in support of his claim for a higher rating for his low back disability and for a TDIU.

In this decision the Board is granting the TDIU claim.  In years past, if a Veteran received a 100 percent schedular rating for his service-connected disability, the issue of entitlement to a TDIU became moot since a Veteran could not have a 100 percent schedular rating while concurrently having a TDIU.  38 C.F.R. § 4.16(a); VAOGCPREC 6-99 (June 7, 1999), 64 Fed. Reg. 52375 (1999).  Other precedent decisions also discussed this interplay.  See, e.g., Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Bowling v. Principi, 15 Vet. App. 1 (2001).  Essentially, VAOGCPREC 6-99 held that receipt of a 100 percent schedular rating for a service-connected disability rendered moot any pending claim for a TDIU, requiring dismissal of the TDIU claim.  See also Green v. West, 11 Vet. App. 472, 476 (1998); Vettese v. Brown, 7 Vet. App. 31, 
34-35 (1994); and Smith v. Brown, 10 Vet. App. 330, 333-34 (1997) (dismissal is the proper remedy to employ when an appeal has become moot).

There is the reverse situation here, however, as the Board is granting a TDIU rather than a 100 percent schedular rating for the low back disability.  But, regardless, in view of the Court's decision in Bradley v. Peake, 22 Vet. App. 280 (2008), which took a position contrary to the one reached in the OGC precedent opinion, the General Counsel took action to withdraw that prior opinion.  Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC), which is contrary to the holdings in VA O.G.C. Prec. Op. No. 6-99.

VA has a "well-established" duty to maximize a claimant's benefits.  See Buiev. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to SMC under 38 U.S.C.A § 1114.  See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC  "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").  Indeed, as noted in Bradley, VA must consider a TDIU claim despite the existence of a schedular total rating and award of SMC under 38 U.S.C.A. § 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.  See Bradley at 294 ; see also DVA Sum. Op. Gen. Counsel Prec., 75 Fed. Reg. 11229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-99, 64 Fed. Reg. 52375 (1999) (the logic of Bradley suggests that, if a Veteran has a schedular total rating for a particular service-connected disability and subsequently claims TDIU for a separate disability, VA must consider the TDIU claim despite the existence of the schedular total rating and award SMC under section 1114(s) if VA finds the separate disability(ies) support a TDIU independent of the other 100 percent disability rating).


SMC is payable at the housebound (HB) rate where the Veteran has a single 
service-connected disability rated as 100-percent disabling and, in addition:  (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).

Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the Rating Schedule must have at least one disability that is rated at 100 percent in order to qualify for the SMC provided by that statute.  The Court declared, however, if a Veteran were awarded a TDIU based on multiple underlying disabilities and then later receives a schedular disability rating for a single, separate disability that would, by itself, create the basis for an award of a TDIU, that the order of the awards was not relevant to the inquiry as to whether any of the disabilities alone would render him unemployable and thus entitled to a TDIU based on that condition alone.  Buie v. Shinseki, 24 Vet. App. 242, 250 (2010).

Partly for these reasons, the Board is remanding the claim of entitlement to a rating higher than 40 percent for the low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes, on both a schedular and extra-schedular basis, not instead finding this claim moot with the granting of the TDIU.



FINDINGS OF FACT

1.  The Veteran's service-connected disabilities are:  a low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes, currently rated as 40-percent disabling; associated cervical spondylitis rated as 
10-percent disabling; associated constipation also rated as 10-percent disabling; and associated short-term memory loss as well rated as 10-percent disabling, for a combined 60 percent rating.  As these disabilities result from common etiology, they may be considered as one collective disability for the purpose of determining whether he satisfies the threshold minimum rating requirements for consideration of a TDIU.

2.  These disabilities are so severe as to preclude him from obtaining and maintaining substantially gainful employment.


CONCLUSION OF LAW

The criteria are met for a TDIU.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.34l, 4.15, 4.16, 4.18, 4.19 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Duties to Notify and Assist

As provided by the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).  Here, though, the Board need not discuss whether there has been VCAA compliance because the claim is being granted, regardless.  See, e.g., 38 C.F.R. § 20.1102 (2012) (harmless error) and Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining that VCAA notice errors, even if they occur, are not presumptively prejudicial, rather, must be judged on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only showing there is a VCAA notice or assistance error but, moreover, above and beyond that, showing it is unduly prejudicial - meaning outcome determinative of his claim.  There simply is no such possibility in this particular instance.

II.  Entitlement to a TDIU

A TDIU requires 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 disabilities that are not service connected.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19 (2012).  In making this determination, then, the critical 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).

If there is only one service-connected disability, it must be ratable at 60 percent or more.  Whereas, if there are two or more service-connected disabilities, at least one must be ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more.  But disabilities resulting from common etiology or single accident will be considered as one disability in determining whether these threshold minimum rating requirements are met.  38 C.F.R. § 4.16(a).

In claiming entitlement to a TDIU, the Veteran alleges he is unable to work on account of the severity of his service-connected disabilities.  These service-connected disabilities are:  his low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes, currently rated as 40-percent disabling; also associated cervical spondylitis, constipation, and short-term memory loss, which are all rated as 10-percent disabling, for a combined 60 percent rating effectively since June 29, 2004.  See 38 C.F.R. § 4.25 (VA's Combined Ratings Table).

While these disabilities do not at first glance appear to satisfy the requirement of a combined rating of 70 percent or more, they do not have to.  38 C.F.R. § 4.16(a) provides that disabilities resulting from common etiology or a single accident may be considered as one collective disability for purposes of satisfying the one 60 percent disability or one 40 percent disability in combination requirements.  Accordingly, as each of the Veteran's service-connected disabilities are associated with his low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes, all of these disabilities may for all intents and purposes be considered as one collective disability.  And since these disabilities combine to a rating of 60 percent, see again 38 C.F.R. § 4.25, he has a sufficient rating to meet the threshold minimum requirements of 38 C.F.R. § 4.16(a) for consideration of a TDIU, that is, without having to resort to the special 
extra-schedular provisions of § 4.16(b).  So the only remaining consideration is whether these service-connected disabilities render him unable to obtain and maintain substantially gainful employment.

In Hatlestad v. Derwinski, 1 Vet.App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there is a need to discuss whether the standard delineated in the controlling regulations is an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, VA's General Counsel concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  As further observed by VA's General Counsel, "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91.


A claim for a TDIU "presupposes that the rating for the [service-connected] condition is less than 100 [percent], and only asks for TDIU because of 'subjective' factors that the 'objective' rating does not consider."  See Vettese v. Brown, 7 Vet. App. 31, 34-35 (1994).  In evaluating a Veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but as mentioned not to his age or impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19.  See also Hodges v. Brown, 5 Vet.App. 375 (1993); Blackburn v. Brown, 4 Vet.App. 395 (1993); and Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992).

While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1, Part VI, paragraph 7.09(a)(7), defines the term as "that which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides."  See, too, Moore v. Derwinski, 1 Vet.App. 356, 358 (1991).  Also, in Faust v. West, 13 Vet.App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income...."

In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the Court also discussed the meaning of "substantially gainful employment."  In this context, the Court noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975):

It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity.  The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits.  The test is whether a particular job is realistically within the physical and mental capabilities of the claimant.

Marginal employment, for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a).  See also Moore (Robert) v. Derwinski, 1 Vet.App. 356, 358 (1991).  That is, a Veteran may be considered as unemployable upon termination of employment that was provided on account of disability or in which special consideration or accommodation was given on account of the same.  See 38 C.F.R. § 4.18.  Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person.  38 C.F.R. § 4.16(a).  Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold.  Id.  Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop.  Id.

Requiring a Veteran to prove that he is 100-percent, i.e., totally unemployable is different than requiring he prove that he cannot maintain substantially gainful employment.  The use of the word "substantially" suggests intent to impart flexibility into a determination of the Veteran's overall employability, whereas a requirement that a Veteran prove 100-percent unemployability leaves no flexibility.  Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001).  As the Court stated in Friscia v. Brown, 7 Vet. App. 294, 297 (1994), the Board may not reject a claim for a TDIU without producing evidence, as distinguished from mere conjecture, showing the Veteran can perform work that would produce sufficient income to be other than marginal.  See, too, Ferraro v. Derwinski, 1 Vet. App. 362, 331-32 (1991).

That said, as already alluded to, to receive a TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to cause unemployability.  Hatlestad v. Brown, 5 Vet.App. 524, 529 (1993).  The Court also clarified in Van Hoose v. Brown, 4 Vet.App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired.  Indeed, according to 38 C.F.R. § 4.1, the degrees of disability specified in the Rating Schedule 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.  So above and beyond this, the record must reflect some factor that takes a particular case outside the norm in order for a claim for individual unemployability benefits to prevail.  As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough.  The question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment.

Turning now to the facts of this particular case at hand, records show the Veteran has not engaged in substantially gainful employment since 2003.  During his July 2008 Travel Board hearing and September 2012 videoconference hearing he testified that he had owned a graphic arts and design business until July 2003, but was ultimately unable to maintain that job or other employment due to the chronic problems with his low back.  He alleges that he had occupational impairment even in sedentary work on computers and especially doing any tasks involving manual labor.  He added that he even hired others to do any physically intensive jobs for his business.  He also began receiving SSA benefits for his service-connected low back disability and non-service-connected diabetes shortly thereafter.  The SSA determined he became unable to engage in substantial gainful activity in July 2005.

A September 2003 VA examination report noted that he used a cane and back brace and averaged 2 days a week in bed.  Additionally, the examination report noted that he was unable to stand or walk more than 5 minutes and the pain interfered with various activities of daily living, including the ability to get restful sleep.  

Another VA examination was provided in March 2005.  The Veteran reported that despite medications, his pain was regularly 8/10 on a 10/10 scale.  He noted he walked with a cane and reported unsteadiness on his feet with 4 prior falls.  The examiner noted he was significantly limited in relation to standing, walking, driving, lifting, and climbing stairs.  He required assistance in toileting, sitting up in bed, and transfers.  Additional disabilities associated with his low back disorder were noted, including cervical spondylitis, addiction to opiate medications, constipation, and progressive short term memory loss.  

He was afforded a psychiatric examination to address his opiate addiction.  The record indicated that in December 2002 the Veteran had begun taking morphine to help manage the pain resulting from his low back disability.  And although not based on a direct assessment of his low spine disability, the January 2006 VA mental health compensation examiner opined that the low back disability, at least in part, contributes to the Veteran's unemployability.

A January 2010 VA rehabilitation report noted that the Veteran was experiencing pain at 7/10 that was aggravated by activities such as standing, walking, bending, and prolonged sitting.  He was unable to walk for more than 10 minutes.  The reviewing physician recommended approval for a powered scooter due to the Veteran's limited functional capacity for ambulation secondary to spinal pain.  

An October 2011 private employability evaluation was provided.  The Veteran was interviewed by phone and his entire VA claims file was reviewed in conducting the evaluation.  When asked to describe his daily activities, the Veteran stated that he spent 95 percent of his time in an adjustable bed that could be positioned flat for sleeping or in a reclining position.  He stated he was able to bathe and shower himself with the use of a shower chair.  Ambulation was reported as difficult with the use of a cane inside the house and a motorized wheelchair outside the house.  

The Veteran had injured his back during service and resultantly had had to have back surgery.  After separating from service and recovering from his back surgery, he reported that his first post-service employment was as a car salesman.  After a year and a half, he started working as a security guard, but was soon laid off.  He next worked at a convenience store and was able to sit down on a stool and work on a computer when the store was not busy, but he also was responsible for more hands on activities.  After the store closed, he returned to work as a security guard, The stair climbing involved caused him significant pain.  And the required gun belt he had to wear cut into his back and made it impossible to wear a brace.  He had to leave that job in 1999 due to the severity of his back pain.  He then decided to try self-employment and until 2005 ran a graphics design and sign business.  

He worked in computer-aided design as well as the physically active installation work until he could no longer take the back pain.  He has not worked since he officially closed the business in July 2003.  

The October 2011 private evaluator noted that, although the Veteran had acquired skills through training and employment such as completing a high school education, training as a medical technician and licensed practical nurse from the Army, and experience as a salesman, armed guard, and computer graphics designer, his chronic back pain and limited functional capabilities impaired his ability to hold any type of job.  He is unable to perform any job that would require prolonged standing, walking, or sitting.  The evaluator opined that based on the consistency of the medical record, ongoing severity of symptoms, and the Veteran's description of his past employment problems, it is at least as likely as not that his service-connected low back pain has rendered him unable to secure or follow a substantially gainful occupation.  

With consideration of the above the evidence, there is confirmation the pain caused by the Veteran's low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes and associated disabilities, virtually eliminates any possibility of him reentering the workforce and obtaining a job that could be considered substantially gainful versus just what amounts to marginal.  So a TDIU is warranted, especially when all reasonable doubt regarding the determinative issue of employability is resolved in his favor.  38 C.F.R. § 4.3.


ORDER

The claim for a TDIU is granted, subject to the statutes and regulations governing the payment of VA compensation.



REMAND

With regards to the Veteran's remaining claim for entitlement to a rating higher than 40 percent for his low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes, including on an extra-schedular basis, unfortunately, another remand is required.

Aside from the reasons already discussed as to why his low back disability renders him unemployable, and therefore entitled to a TDIU, this low back disability appears to be quite severe and potentially inadequately compensated by his current 40 percent schedular rating.  His VA treatment records and September 2003 and March 2005 VA compensation examination reports show diagnoses of degenerative disc disease, chronic low back pain, and lumbosacral spondylosis.  And although his entire thoracolumbar spine is not unfavorably ankylosed to warrant a higher 50 percent rating under the General Rating Formula for Diseases and Injuries of the Spine, nonetheless, the March 2005 VA examiner diagnosed "lumbar disc herniation with surgical repair through fusion of L4-L5 and S1, making certain movement difficult, if not impossible."  Moreover, although he does not qualify for a higher schedular rating under the existing rating criteria, it is likely that his overall low back disability picture is worsening.  A September 2008 VA treatment record shows he has worn a large back brace.  And a more recent January 2010 VA rehabilitation treatment record noted that he was experiencing pain at 7/10 that was aggravated by activities such as standing, walking, bending, and prolonged sitting.  He was unable to walk for more than 10 minutes.  At his most recent September 2012 videoconference hearing, he reported that since about 2009, he had spent about 80 percent of his time in bed because the pain was too great to sit, stand, or walk for any prolonged period of time.


Where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination.  See Allday v. Brown, 7 Vet. App. 517, 526 (1995).  See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (determining the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating).  See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991).  Once VA undertakes the effort to provide an examination and opinion for a claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  And see Stefl v. Nicholson, 21 Vet.App. 120, 123 (2007) (VA's duty to assist includes providing an adequate examination when such an examination is indicated). 

Additionally, it should be considered whether the Veteran's low back disability is so severe as to warrant extra-schedular consideration.  Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical.  See Fisher v. Principi, 4 Vet.App. 57, 60 (1993); 38 C.F.R. § 3.321(a), (b) (2012).

As indicated when previously remanding this claim, the Board is precluded from assigning an extra-schedular rating in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of Compensation and Pension Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).


According to § 3.321(b)(1)(2012), an extra-schedular disability rating is warranted 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 Fanning v. Brown, 4 Vet. App. 225, 229 (1993).

The Court has held that the question of an extra-schedular rating is a component of a Veteran's claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 157 (1996).  Bagwell stands for the proposition that the Board may deny extra-schedular ratings, provided that adequate reasons and bases are articulated.  See VAOPGCPREC 6-96 (Board may deny extra-schedular ratings, provided that the RO has fully adjudicated the issue and followed appropriate appellate procedure). Bagwell left intact a prior holding in Floyd v. Brown, 9 Vet. App. 88, 95 (1996), wherein the Court had found that when an extra-schedular grant may be in order, that issue must be referred, pursuant to 38 C.F.R. § 3.321, to those "officials who possess the delegated authority to assign such a rating in the first instance."

The Court has clarified the analytical steps necessary to determine whether referral for extra-schedular consideration is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009)..  The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  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 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.  Id.


While the RO/AMC has previously addressed but rejected the notion of referring this case to the Under Secretary for Benefits or Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating, as noted in the June 2011 SSOC, since symptomatology has worsened, this possibility should be revisited.

Accordingly, this remaining claim for a higher rating for his low back disability is REMANDED for the following additional development and consideration:

1.  Schedule appropriate compensation and pension (C&P) examinations, preferably orthopedic and neurological examinations, to reassess the severity of the Veteran's service-connected low back disability, status post fusion of L4-5 and L5-S1 with lumbar spondylitis and arthritic changes.  The claims file, including a complete copy of this decision and remand, must be made available to the examiner(s) for review of the pertinent history of this disability and all associated disabilities.

All pertinent symptomatology, including lumbosacral spine range of motion and all neurological findings should be reported in detail.  Any indicated diagnostic tests and studies should be accomplished.  Application of 38 C.F.R. § 4.40 regarding functional loss due to pain and 38 C.F.R. § 4.45 regarding weakness, fatigability, incoordination or pain on movement of a joint should be considered.  See DeLuca v. Brown, 8 Vet.App. 202, 206 (1995).


The examiner should, among other things, clarify whether the Veteran has what amounts to favorable or unfavorable ankylosis of his thoracolumbar spine or entire spine (that is, when additionally considering the adjacent cervical segment).  Ankylosis is stiffening or fixation of the joint as the result of a disease process, with fibrous or bony union across the joint.  Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) citing Dorland's Illustrated Medical Dictionary at 94 (31st ed. 2007) (Ankylosis is "immobility and consolidation of a joint due to disease, injury, or surgical procedure."); see also Coyalong v. West, 12 Vet. App. 524, 528 (1999).  See, too, Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].

Note (5) in 38 C.F.R. § 4.71a, DCs 5235-5242, explains that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, entire thoracolumbar (thoracic and lumbar) spine, or the entire spine when considering all of these segments is fixed in flexion or extension.  Fixation of a spinal segment in the neutral position (0 degrees) always represents favorable ankylosis.


2.  Reconsider whether the Veteran is entitled to extra-schedular consideration under 38 C.F.R. § 3.321(b)(1).  If he is, refer this case to the Under Secretary for Benefits or the Director of Compensation and Pension Service for appropriate action.

3.  If additional compensation for this low back disability is not granted to the Veteran's satisfaction, then send him and his attorney an SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs