Citation Nr: 1305377 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 06-19 372 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an extra-schedular rating for L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1959 to March 1962. This matter comes to the Board of Veterans' Appeals (Board) from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In May 2008, the Board, among other things, remanded the claims for entitlement to a higher initial disability evaluation in excess of 20 percent for lumbar spine disability and a total disability evaluation based on individual unemployability (TDIU). In September 2010, the Board denied a schedular rating in excess of 20 percent for L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes, and remanded the issue of TDIU as well as the newly raised issue of entitlement to an extraschedular evaluation. In August 2011, the Board denied entitlement to a TDIU and remanded the issue again regarding extra-schedular rating for L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The disability picture of the L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes cannot be characterized as exceptional case so as to render the schedular evaluation inadequate. CONCLUSION OF LAW The criteria for entitlement to an extraschedular rating in excess of 20 percent for L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.321(b)(1) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify & Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also 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 supplemental statement of the case, is sufficient to cure a timing defect). The Veteran's extraschedular claim arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. The Board also finds that VA has complied with all assistance provisions of VCAA, to include substantial compliance with the September 2010 and August 2011 remand directives with regard to the extraschedular issue. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The record indicates that the Appeals Management Center (AMC) referred the Veteran's L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes disability to the Director of VA's Compensation Service for extraschedular consideration. The AMC later issued a supplemental statement of the case in January 2013. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. Stegall v. West, 11 Vet. App. 268 (1998), (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). There is no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The evidence of record contains the Veteran's private and updated VA medical records and Social Security Administration (SSA) records. There is no indication of relevant, outstanding records which would support the Veteran's lumbar spine claim which is discussed below. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). The Veteran underwent VA examinations in June 2004, March 2006, and November 2008, and October 2009 with a February 2010 addendum opinion pertaining to the lumbar spine. The October 2009 VA examination addressed the affect of the service-connected lumbar spine disability on employment. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Collectively, such examination reports and opinions are sufficient to address the issue being addressed on appeal. For all the foregoing reasons, the Board concludes that VA's duties to the Veteran have been fulfilled with respect to the issue of entitlement to an extraschedular rating. Extraschedular Rating for L5 Pars Congenital Defect, Spondylolisthesis, L5-S1, Injury with Spondylosis, Status Post Fusion, L4-L5, with Degenerative Changes Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the VA Schedule for Rating Disabilities (Rating Schedule) is sufficient to compensate a veteran for the effects of his or her disability on occupational and social functioning. See 38 C.F.R. §§ 4.20, 4.27 (2012). Because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstances and symptomatology, but nevertheless would still be adequate to address the average impairment in earning capacity caused by a disability. However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321(b) (2012). In the September 2010 Board remand, it was determined that there was evidence to suggest referral for extraschedular consideration for the Veteran's service-connected lumbar spine disability was warranted. The Board reviewed the record under the test announced in Thun v. Peake, 22 Vet.App. 111 (2008). The Board's previous findings were only a threshold determination for referral. See 38 C.F.R. § 3.321(b). The Board emphasizes that the Board's findings that referral was warranted are not tantamount to findings that an extraschedular rating is appropriate and should be assigned. See Anderson v. Shinseki, 22 Vet.App. 423, 426 (2009). Thus, in the September 2010 remand, it was instructed that the Veteran's claim should be submitted to the Director, Compensation and Pension Service for extraschedular consideration per 38 C.F.R. § 3.321(b)(1). In August 2011, the Board remanded the extraschedular claim finding that the Director, Compensation and Pension Service, failed to proffer an opinion as whether an extraschedular evaluation was warranted per 3.321(b)(1). In the August 2011 remand, the Board again sought an opinion from the Director, Compensation and Pension Service (now Compensation Service). In a November 2012 Administrative Review, the Director of Compensation Service concluded that entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321(b) in excess of 20 percent for service-connected back condition was not established. The Board reviews all of the determinations made by the Secretary as to benefits. See Anderson. The propriety of an extraschedular rating is determined by application of a three part test. See Thun. These three steps are as follows: Step 1- The Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. If the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then the Board must address step two. Step 2- The Board must determine whether the Veteran's exceptional disability picture exhibits other related factors such as those identified by the regulation as "governing norms," including "marked interference with employment" or "frequent periods of hospitalization." Step 3- If the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has 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 for a determination of whether the Veteran's disability picture warrants the assignment of an extraschedular rating. See Thun. The Board remanded in September 2010 and August 2011 to refer the case to the Director of the Compensation Service for a determination of whether the Veteran's disability picture warrants the assignment of an extraschedular rating. The Director issued a November 2012 decision that such a rating was not warranted. The Director, following a review of the claims file, concluded that the evidence did not establish the Veteran's service connected back condition presented such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent hospitalization as to render impractical the application of the regular schedular standards. While the opinion refers to ventral hernia in its subject line, it is apparent from the body of the document that the lumbar spine was the service-connected disability considered. A November 1991 private examination report reflects flexion to 70 degrees and 15 degrees of extension. Degenerative disc disease was shown on x-ray examination, and the examiner commented that the Veteran has problems with his back when he tries to be physically active. Examination was remarkable for signs of general debilitation, some ataxia of gait, with some limited range of motion of the lumbar spine. In March 1999, the Veteran sought evaluation to establish VA primary care. The examiner noted low back pain status post laminectomy, and suggested back exercises and weight loss, but there were no specific objective findings. On private examination in May 2000, range of motion was normal for his age and he did not report severe discomforts. On VA examination in June 2004, forward flexion was to 75 degrees, extension was to 15 degrees, and bilateral lateral flexion and bilateral lateral rotation were also limited. Range of motion was limited by stiffness and mild pain, with no improvement on active assistance. A March 2006 VA examination report reflects flexion to 52 degrees, with pain beginning at 52 degrees, with extension to 22 degrees, and limited lateral flexion and lateral rotation. Despite the Veteran's pain, there was no additional limitation of motion on repetitive use of the joint due to pain, fatigue, weakness, or lack of endurance. The examiner commented that his range of motion was very mildly decreased due to his body habitus; his weight was noted at 238 pounds. The examiner commented that any additional limitation of motion or other functional impairments during flare-up results in loss of about 30 percent of mobility. The examiner found that the Veteran's fatigue is severe, decreased motion is moderate, stiffness is moderate, weakness is mild, and pain is moderate occurring on a daily basis. The examiner specifically stated that the Veteran has not been prescribed bedrest. On November 2008 VA examination, the Veteran indicated that he has to lie down 2 to 3 times per day to rest his back, he reported only 3 episodes over the prior 12 months, each lasting 2 days. On examination, flexion was to 75 degrees, extension was to 22 degrees, right rotation was to 25 degrees, left rotation was to 26 degrees, and bilateral lateral flexion was to 22 degrees. There was some additional limitation of motion with three repetitions due to pain, resulting in 70 degrees of flexion, 20 degrees of extension, 20 degrees of bilateral rotation, and 20 degrees of bilateral lateral flexion. The examiner commented that the Veteran's additional limitation of motion or other functional impairments during flare-ups were mild, and that rest and analgesics alleviated flare-ups. In a February 2010 addendum opinion, the November 2008 VA examiner commented that limitation of motion was additionally limited by pain. With regard to neurological symptomatology, the Veteran had complaints of radiating pain to the right buttock, posterior thigh, and to distal posterior calf. A March 2006 sensory examination of the left lower extremity was essentially normal, but a sensory examination of the right lower extremity was impaired based on pain, light touch, and position sense. He had diminished sensation to sharp sensation along the lateral foot and dorsum of foot. Knee and ankle jerk were absent. EMG/NCV studies showed peripheral neuropathy with no evidence of radiculopathy. His peripheral neuropathy was not attributed to his lumbar spine disability. Such symptomatology was also discussed and acknowledged in the November 2008 and October 2009 VA examination reports; however, radiculopathy or sciatica has not been diagnosed or attributed to his lumbar spine disability. The Veteran has indicated that he is unable to work due to his service-connected lumbar spine disability. The Veteran was previously employed as an electronic technician/telecommunications specialist, and completed the equivalent of a high school education. He is in receipt of SSA disability benefits, commencing April 1991, due in part to his lumbar spine disability. Statements from Brett Wyche, M.D., dated in December 2005 and August 2006 indicate that the Veteran is unable to maintain gainful employment due to his service-connected back disability. Dr. Wyche states that the Veteran is unable to perform physical labor, lift, or standing for prolonged periods of time, and he is completely unemployable. Dr. Wyche opined that the Veteran is permanently disabled due to his back condition with no reasonable expectation of being able to return to work. An October 2007 statement from the Department of Labor and Workforce Development in Tennessee states that the Veteran would prefer to be employed but with his physical limitations it would be virtually impossible to place with him with gainful employment. VA examination reports of record reflect that the Veteran is unable to do any prolonged standing, walking, or sitting due to his lumbar spine disability. An October 2009 VA opinion, however, states that the Veteran's lumbar spine condition would not prevent some sedentary occupations that did not require prolonged standing or walking. The Veteran's lumbar spine disability picture does not exhibit other related exceptional factors such as those identified by the regulation as "governing norms," including "marked interference with employment" or "frequent periods of hospitalization." The Veteran does not allege and the evidence does not suggest that he has had hospitalizations during the period on appeal for the lumbar spine disability. The Veteran's allegations of interference with employment are those described above. However, the Veteran is in receipt of a compensable rating for the lumbar spine disability. The Veteran's impairment is productive of some industrial loss which is anticipated by the ratings schedule and the 20 percent rating. It cannot be said that his impairment is "marked" in degree, which, although a level less than total impairment, still indicates a rather significant level of impairment, which is not shown here. On October 2009 VA examination, while the examiner acknowledged that the Veteran would not be able to secure employment that involved physical activity, the examiner found that the Veteran's lumbar spine disability would not prevent some sedentary occupations that did not require prolonged standing or walking. On March 2006 VA examination, the Veteran reported that engaged in sedentary recreational activities and was able to drive up to 100 miles. The Board finds that the Veteran's disability picture is not exceptional and does not exhibit related factors such as frequent periods of hospitalization due to his lumbar spine disability or marked interference with all types of employment, only one where he would be physical activity or required prolonged standing or walking. He has experience in telecommunications and is not shown to be precluded from light manual labor employment due solely to his service-connected low back disability. The Board finds that the schedular criteria have properly addressed the impairment caused by the service-connected lumbar spine disability. As the applicable rating criteria reasonably describe the Veteran's disability level and symptomatology, the analysis as to whether an extra-schedular evaluation is warranted ends. For the foregoing reasons, the Board finds that the criteria for the assignment of an extraschedular evaluation for L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes, pursuant to 38 C.F.R. § 3.321(b)(1), are not met. See Thun v. Peake, 22 Vet. App. 111 (2008); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to an extra-schedular rating for L5 pars congenital defect, spondylolisthesis, L5-S1, injury with spondylosis, status post fusion, L4-L5, with degenerative changes is denied ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs