Citation Nr: 1311080 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 97-00 299 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an evaluation in excess of 40 percent, from August 8, 1996 to May 13, 1999, for degenerative disc disease of the lumbar spine, with history of sciatic nerve injury. 2. Entitlement to an evaluation in excess of 60 percent, since May 14, 1999, for degenerative disc disease of the lumbar spine, with history of sciatic nerve injury. 3. Entitlement to an effective date prior to February 18, 2009, for the award of a total disability rating based on individual unemployability due to service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty form November 1972 to November 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 1996 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas, which denied an increased evaluation in excess of 20 percent for the Veteran's service-connected sciatic nerve injury with partial foot drop, left. The Veteran timely filed an appeal of this decision. In February 1997, the Veteran testified at a hearing held before a hearing officer at the RO. A copy of the transcript of this hearing has been added to the claims file. In November 1998, the RO issued a rating decision which granted service connection for degenerative disc disease of the lumbar spine, secondary to the Veteran's service-connected sciatic nerve injury. The rating decision then evaluated the Veteran's newly combined disability, degenerative disc disease of the lumbar spine, with history of sciatic nerve injury, as 40 percent disabling, effective from August 8, 1996. In September 1999, the RO granted an increased evaluation of 60 percent for the Veteran's service-connected degenerative disc disease of the lumbar spine, with history of sciatic nerve injury, effective May 14, 1999. The Veteran continued to seek an increased evaluation for this disability. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In January 2001, the Board remanded the Veteran's claim for further development. After completing the required development, the RO returned this matter to the Board, which denied the claim for increased evaluation in a May 2003 decision. The Veteran appealed the Board's May 2003 decision to the United States Court of Appeals for Veterans Claims (Court). In June 2004, pursuant to a Joint Motion for Remand, the Court vacated the Board's May 2003 decision and remanded this case to comply with VA's duty to notify. In September 2004, the Board remanded the Veteran's case to the RO with instructions to comply with the notice requirements of 38 U.S.C.A. § 5103(a) (Veterans Claims Assistance Act of 2000). The RO subsequently provided the Veteran with the required notice. In January 2006, the Board again issued a decision confirming the decisions by the RO. The Veteran subsequently appealed this decision to the Court. In September 2007, the Court issued a memorandum decision which held that the Board's January 2006 decision had improperly relied upon an inadequate medical examination. It also indicated that the Board had not adequately discussed the possibility for assignment of an extra-schedular rating. The Court then vacated the Board's January 2006 decision and remanded this matter for additional consideration. In May 2008, the Board remanded this case to the RO directing that an additional examination be conducted, and that the RO consider application of an extra-schedular rating. The Veteran subsequently underwent an additional VA examination in September 2008. In April 2009, the Board issued a decision which denied entitlement to an increased rating for degenerative disc disease of the lumbar spine, rated as 40 percent for the period from August 8, 1996 to May 13, 1999, and 60 percent from May 14, 1999, on a schedular basis. The Board then remanded the issue of whether the Veteran shoulder be assigned an extra-schedular evaluation under 38 C.F.R. 3.321(b)(1). The Veteran timely appealed the Board's April 2009 decision to the Court. While the Veteran's appeal was pending before the Court, the RO issued a November 2009 rating decision granting entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU benefits), effective from February 18, 2009. In December 2009, the Veteran filed a notice of disagreement with this decision. He specifically indicated that he was seeking an earlier effective date of July 28, 2008, for the award of TDIU benefits. A few days later in December 2009, the Court issued an order which vacated the Board's April 2009 decision and remanded the Veteran's claim pursuant to a December 2009 Joint Motion for Remand. Citing the Court's recent decision in Rice v. Shinseki, 22 Vet.App. 447, 454-55 (2009), the Joint Motion concluded that the Veteran, in challenging the evaluation assigned to his lumbar spine disability, had effectively raised a claim for entitlement to TDIU benefits. In a November 2010 remand, the Board noted that the RO had previously denied the issue of entitlement to TDIU benefits in April 1999 and February 2000 rating decisions, which the Veteran did not appeal, and which were now final. The Board's remand further clarified that the RO had issued a November 2009 rating decision which granted entitlement to TDIU benefits, effective February 18, 2009. Under these circumstances, the Board's remand directed the RO to obtain the Veteran's updated VA treatment records, obtain records relating to his worker's compensation claim, and readjudicate the issues on appeal, including consideration of entitlement to an earlier effective date, prior to February 18, 2009, for the award of TDIU benefits, and consideration of a TDIU on extraschedular basis under 38 C.F.R. § 4.16(b). In May 2012, the Board remanded this case directing the RO to refer the Veteran's claim to VA's Under Secretary for Benefits or the Director of VA's Compensation and Pension Service for extraschedular consideration. For the sake of clarity, the Board has separately listed the issues which must be addressed in this appeal. It has also characterized the Veteran's service-connected disability as degenerative disc disease of the lumbar spine, with history of sciatic nerve injury, to acknowledge that it consists of orthopedic and neurological components. The appeal is REMANDED to the RO via the Appeals Management Center in Washington, DC. VA will notify the appellant if further action is required. REMAND The Veteran is seeking a higher evaluation for his degenerative disc disease of the lumbar spine, with history of sciatic nerve injury. He is also seeking an effective date, prior to February 18, 2009, for the award of TDIU benefits. Pursuant to the RO's request, the Director, Compensation and Pension Service, submitted a November 2012 administrative review memorandum, which considered the Veteran's entitlement to TDIU benefits under the provisions of 38 C.F.R. § 4.16(b). In the memorandum, the Director pointed out that the Veteran's service-connected disabilities, as currently rated, do not meet the schedular requirements for the award of TDIU benefits pursuant to 38 C.F.R. § 4.16(a). Specifically, 38 C.F.R. § 4.16(a) provides that if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Veteran is service-connected for two disabilities: degenerative disc disease of the lumbar spine, with history of sciatic nerve injury, evaluated as 60 percent disabling; and chronic prostatitis, evaluated as 10 percent disabling. The combined disability evaluation assigned to these two disabilities is only 60 percent. Under these circumstances, the memorandum concludes that the RO's December 2009 rating decision granting entitlement to TDIU benefits was in error, absent extra-schedular consideration under 38 C.F.R. § 4.16(b). As for the issue of whether the Veteran's disability warrants extra-schedular consideration for TDIU benefits under 38 C.F.R. § 4.16(b), the memorandum concluded that "the record does not show that the Veteran is unable to secure and follow any gainful occupation by reason of his service-connected disabilities." As such, entitlement to TDIU on an extra-schedular basis was denied. In Kellar v. Brown, 6 Vet. App. 157, 162 (1994), the Court held that 38 C.F.R. § 4.16(b) addresses a situation where a Veteran is unable to secure or follow a substantially gainful occupation. This is different issue, however, than extraschedular consideration under § 3.321(b)(1), which was designed to address a disability that results in marked interference with employment or frequent periods of hospitalization. In terms of marked interference with employment, the Director's memorandum cites the November 2009 VA examiner's opinion that the Veteran's employability was significantly impaired due to limited mobility, inability to do repetitive motions, and limited prospects for improvement. Pursuant to the Board's April 2009 remand, the RO was to consider the issue of whether the Veteran should be assigned an extra-schedular evaluation under 38 C.F.R. 3.321(b)(1). Given the Board's prior directives on this issue, the evidence of record showing marked interference with employment, and the rating considerations highlighted within the 38 C.F.R. 4.16(b) memorandum, the RO must refer this matter to the Under Secretary for Benefits or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b). Given the passage of time, the RO must also obtain the Veteran's updated treatment records, and schedule him for an updated VA examination to determine the current severity of his degenerative disc disease of the lumbar spine, with history of sciatic nerve injury. This examination must be conducted by an examiner that has reviewed the Veteran's claims file, and the examination report must address all aspects of the Veteran's disability, including orthopedic and neurological components. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify or submit any additional pertinent evidence in support of his claims, to include all VA and non-VA medical providers who have treated him for degenerative disc disease of the lumbar spine, with history of sciatic nerve injury, since August 2010. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. Regardless of his response, the RO must obtain the Veteran's updated treatment records, since August 2010, from the VA Medical Center in Phoenix, Arizona. All attempts to secure this evidence must be documented in the claims file by the RO if the requested records are not obtained. 2. Schedule the Veteran for the appropriate VA examination(s) to determine the current severity of his service-connected degenerative disc disease of the lumbar spine, with history of sciatic nerve injury. If possible, this examination should be conducted by a specialist in spinal/neurological disabilities. The claims file (as well as all relevant Virtual VA records) must be made available to and reviewed by the examiner in conjunction with the examination. All tests and studies deemed necessary by the examiner must be performed. With respect to the lumbosacral spine, in discussing the relevant clinical findings, the examiner must specifically note the Veteran's present symptoms and complaints including: any reported incapacitating episodes (doctor-prescribed bedrest) and their durations; hospitalizations, surgeries, or interference with employment and/or activities of daily living; findings of intervertebral disc syndrome; findings of ankylosis of the spine; thoracolumbar range of motion to the extent that it may be tested; any findings of further functional loss marked by additional loss of motion, pain, weakness, or fatigue after repetitive motion; any findings of muscle spasm, guarding, localized tenderness, abnormal gait, abnormal spine contour (such as scoliosis, reversed lordosis, or abnormal kyphosis), vertebral body fracture with loss of 50 percent or more of height; and radiculopathy or other neurological component, separately addressing each extremity effected. As to as any demonstrated radiculopathy, the examiner must describe the nature and extent of such radiculopathy in terms of severity (i.e., mild, moderate, severe). The examiner must also note the location and severity of any neurological symptoms and the nerve groups involved. A complete rationale must be given for all opinions and conclusions. Such rationale must include a discussion of all relevant evidence in the claims file and supporting medical principles, and must be expressed in a typewritten report. 3. The RO must notify the Veteran that it is his responsibility to report for any examination scheduled, and to cooperate in the development of the claims. The consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2012). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained and associated with the Veteran's claims file that shows that notice scheduling the examination was sent to his last known address. Documentation must be also be obtained and associated with the Veteran's claims file demonstrating any notice that was sent was returned as undeliverable. 4. After completing the above, refer this matter to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extra-schedular evaluation pursuant to 38 C.F.R. § 3.321(b). 5. After completing the above, and any other development as may be indicated, re-adjudicate the issues on appeal. In doing so, the RO must consider whether separately evaluating the orthopedic and neurological components of the Veteran's degenerative disc disease of the lumbar spine, with history of sciatic nerve injury under the current regulations would warrant a higher rating. If any claim remains denied, provide the Veteran and his representative with a supplemental statement of the case. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. 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). ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).