Citation Nr: 1311928	
Decision Date: 04/10/13    Archive Date: 04/19/13

DOCKET NO.  04-38 648	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUES

1.  Entitlement to an increased rating for service-connected lumbosacral radiculopathy, currently rated as 40 percent disabling. 

2.  Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to December 16, 2003.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Prem, Counsel



INTRODUCTION

The Veteran served on active duty from March 1977 to March 1980 and from July 1983 to November 1988. 

This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York, which continued a 40 percent disability evaluation for lumbosacral radiculopathy and denied entitlement to a total disability rating based upon individual unemployability (TDIU). 

This case was remanded by the Board in May 2007 and April 2009 for adjudication of the claims on an extraschedular basis by the Director of VA's Compensation and Pension Service (C&P Director).  In a March 2011 Administrative Review, the C&P Director denied an extraschedular rating for lumbosacral radiculopathy and deferred a decision on extraschedular consideration for TDIU pending the adjudication of intertwined claims.  

In October 2011, the Board remanded the issue of entitlement to an increased rating for lumbosacral radiculopathy.  It also granted an effective date of December 16, 2003 for entitlement to a TDIU pursuant to § 4.16(a).  It remanded the issue of an even earlier effective date for adjudication of the claims on an extraschedular basis by the C&P Director.  In a November 2012 Administrative Review, the Compensation Director (no longer the Pension Director) denied an extraschedular rating for TDIU.


FINDINGS OF FACT

1.  Prior to September 21, 2004, and from September 21, 2005 the Veteran's lumbosacral radiculopathy were not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months.

2.  From September 21, 2004 through September 20, 2005, the Veteran's lumbosacral radiculopathy were manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months.

3.  The Veteran's case was referred to the Director of Compensation and Pension Service for extraschedular consideration and, in March 2011, the Director of Compensation and Pension Service determined that an extraschedular rating is not warranted for the Veteran's service-connected lumbosacral radiculopathy.

4.  The Veteran's case was referred to the Director of Compensation Service for extraschedular consideration and, in November 2012, the Director of Compensation Service determined that a TDIU is not warranted on an extraschedular basis prior to December 16, 2003.


CONCLUSIONS OF LAW

1.  Prior to September 21, 2004, and from September 21, 2005, the criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected lumbosacral radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Codes 5235-5243 (2012).

2.  From September 21, 2004 through September 20, 2005, the criteria for entitlement to a disability evaluation of 60 percent, but no higher, for the Veteran's service-connected lumbosacral radiculopathy have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.7 and Diagnostic Codes 5235-5243 (2012).

3.  An extraschedular rating for service-connected lumbosacral radiculopathy is not warranted.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321 (2012); Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

4.  The assignment of an effective date earlier than December 16, 2003, for the award of a TDIU, is not warranted.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400, 4.16(b) (2012); Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)-Duty to Notify

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 the degree of disability and the 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, 444 F.3d at 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The Veteran's earlier effective date claim for entitlement to a TDIU arises from an appeal of the initial evaluation following the grant of entitlement to a TDIU.  Courts have held that once service connection is granted the claim is substantiated, and additional notice is not required as 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 for the TDIU claim.

As to the back claim, the Veteran was sent a letter in June 2004 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  A subsequent letter, dated May 2009, explained what type of information and evidence was needed to establish a disability rating and effective date.  The claim was readjudicated in a December 2012 supplemental statement of the case, which cured any timing error.  Accordingly, no further development is required with respect to the duty to notify.

VCAA-Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed on the merits.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Records from the Social Security Administration (SSA) were obtained pursuant to the Board's May 2007 remand.  Moreover, the Veteran's statements in support of the claim are of record.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.  The Veteran has also been afforded VA examinations in connection with the claim.  An examination was conducted in February 2012 pursuant to the Board's October 2011 remand.  The examination provides sufficient evidence for evaluating the Veteran's back disability in the context of the rating criteria.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination, it must provide an adequate one).   Therefore, VA's duty to assist has been met.

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio, 16 Vet. App. at 183.

Increased Rating

The present appeal involves the Veteran's claim that the severity of his service-connected lumbosacral radiculopathy warrants a higher disability rating.  Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet.App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  
 
The Veteran's service-connected lumbosacral radiculopathy has been rated by the RO under the provisions of Diagnostic Codes 5235-5242.  Under these regulatory provisions, a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

The criteria also include the following provisions:

Note (1):  Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4):  Round each range of motion measurement to the nearest five degrees. 

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242.

Additionally, under Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation.  This latter manner of rating disability suggests that a rating higher than 60 percent might be awarded.

The Board notes that Diagnostic Codes 5235-5242 became effective on September 26, 2003 (nine days after the receipt of the Veteran's claim), when the rating criteria for evaluating disabilities were amended.  Consequently, the Veteran's claim was received while the old rating criteria were in effect.

Prior to September 26, 2003, Diagnostic Code 5292 allowed for a rating of 40 percent for severe limitation of motion; a 20 percent rating was warranted for moderate limitation of motion; and a rating of 10 percent was warranted for slight limitation of motion.    

Additionally, prior to September 26, 2003, pursuant to 38 C.F.R. §4.71a, Diagnostic Code 5295, a rating a 40 percent rating was warranted for a severe lumbosacral strain, with listing of whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.  A 20 percent rating was warranted for a lumbosacral strain with muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position.  A 10 percent rating was warranted for characteristic pain on motion.  A noncompensable rating was warranted for subjective symptoms only. 

Diagnostic Code 5293 of the previous rating criteria was essentially identical to the new Diagnostic Code 5243 pertaining to incapacitating episodes.

Under both the old and the new criteria, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  

As noted above, during the pendency of the Veteran's appeal the regulations pertaining to the evaluation of spinal disabilities have been amended.  See 68 Fed. Reg. 51454-56 (Aug. 27, 2003) (effective September 26, 2003).  In Karnas v. Derwinski, 1 Vet. App. 308, 312-313 (1991), the United Stated Court of Appeals for Veterans Claims (Court) held that when the governing law or regulations change during an appeal, the most favorable version will be applied.  The United States Court of Appeals for the Federal Circuit (Federal Circuit) subsequently overruled Karnas to the extent that it indicated retroactive application of a new law or regulation might be appropriate in the absence of language in the law or regulation requiring such application.  See Kuzma v. Principi, 341 F.3d 1327, 1328-1329 (Fed. Cir. 2003).  Similarly, VAOPGCPREC 7-2003, which addressed the standards governing retroactive application of statutes and regulations, found that the Karnas rule conflicts with Supreme Court and Federal Circuit precedent "insofar as it requires VA to apply the version of a statute or regulation most favorable to a claimant when a statutory or regulatory change is silent as to application."  However, VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran.  In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation.  If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) (West 2002) can be no earlier than the effective date of that change.  The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change.  As such, VA must generally consider the claim pursuant to both versions during the course of an appeal.  See VAOPGCPREC 3-2000; 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).

The Veteran underwent a VA examination in November 2003.  The examiner reviewed the claims file in conjunction with the examination.  The Veteran reported that he was able to fulfill activities of daily living, including cooking and cleaning.  He reported that he was able to drive; but after 10-15 minutes, he needed to stretch and get out of the car.  He reported that he could walk 1/8 of a mile.  He stated that he had not worked since July 2003 (at which time his doctor instructed him not to work).    

Upon examination, the Veteran achieved 40 degrees of flexion (with pain from 30-40 degrees); 20 degrees of extension (with pain from 10-20 degrees); 20 degrees of right and left lateral bending; and 20 degrees of right and left rotation.  After repetitively flexing and extending the back, the Veteran achieved 30 degrees of flexion (with pain from 20-30 degrees); 10 degrees of extension (with pain from 0-10 degrees); 10 degrees of right and left lateral bending; and 15 degrees of right and left rotation.  There was decreased sensation to light touch down the dorsum of his left foot.  The examiner assessed L4 nerve root radiculopathy; and he stated that the lumbosacral radiculopathy was at least as likely as not related to the Veteran's history of low back pain.     

The Board notes that in a December 2003 private treatment report, Dr. G.C. stated that the Veteran was "total disabled from 7/22/03."  This was followed by a June 2004 disability slip that stated that the Veteran was treated by Dr. G.C. from June 22, 2003 to the present and could return to work "never."    

A December 2003 MRI revealed disc protrusion/herniation at the L3-4 and L4-5 levels with central stenosis at both these levels, more pronounced at the L4-5 level.  The examiner noted that this resulted in some foraminal narrowing present in particular at the L4-5 level.   

The Veteran underwent another VA examination in May 2004.  The examiner reviewed the claims file in conjunction with the examination.  Upon examination, the Veteran walked with the assistance of a cane and favored the left lower extremity.  His gait was broad-based, slow, and with a pronounced limp.  The tips of the spinous processes of the lumbar vertebrae from L3 down were exquisitely tender on deep palpation.  There was some guarding and muscle spasm.  Forward flexion was restricted from 0-75 degrees, with pain beginning at 20 degrees.  Extension was limited from 0-10 degrees, with pain beginning at 10 degrees.  Left and right lateral flexion was limited to 0-15 degrees with pain beginning at 10 degrees.  Lateral rotation to each side was restricted to 0-30 degrees with pain beginning at 25 degrees.  Repetitive movements did not restrict range of motion, although pain occurred 5 degrees earlier on each movement.  There were no fixed deformities or any postural abnormalities.  There was no ankylosis.  The examiner commented that the Veteran had severe impairments due to neck pain, low back pain, and restriction of mobility.  He stated that the Veteran was in no position to resume his usual employment, or any employment that involved significant amounts of physical exertion or lifting of heavy objects.    

A May 2004 EMG report showed no electrodiagnostic evidence of lumbosacral radiculopathy on the left side.  The examiner concluded that the Veteran had bilateral sural sensory neuropathy of unknown etiology.  

An August 2004 Medical Evaluation Board Report reflects that the Veteran rated his back pain as moderate and constant.  He stated that it kept him up at night and prevented him from doing most activities.  He also reported left lower extremity radicular symptoms (including shooting pains, numbness, and weakness).  Upon examination, the Veteran ambulated with some difficulty and had a definite limp.  There was tenderness to palpation along the spinous processes, with only mild paravertebral tenderness.  The Veteran expressed pain with any attempted range of motion.  He achieved 32 degrees of flexion, 12 degrees of extension, 16 degrees of left lateral bend, 17 degrees of right lateral bend, 27 degrees of left rotation, and 23 degrees of right rotation.  He had appreciable 4 out of 5 weakness of his left quadriceps.  He was able to perform a heel walk; but he was not able to walk on his toes secondary to weakness in his left gastrosoleus.  The weakness was not appreciable on physical examination.  The examiner reviewed the December 2003 MRI report and diagnosed the Veteran with lumbar mild spondylosis and degenerative disk disease resulting in multiple disk herniations and radicular symptoms in the left lower extremity.    

The Veteran also submitted lay statements from a friend (M.H.F.) and his son dated August 2004.  M.H.F. stated that the Veteran could barely move as a result of his accident; that the Veteran appeared to be getting worse; and that the Veteran constantly complained about pain in his neck, lower back, arms, and legs.  The Veteran's son stated that the Veteran came home from training and could barely get out of bed without severe pain; and that in July (2003) doctors would no longer allow him to work.  The son stated that he had to move in with his mother because his father could not support him.  

The Veteran submitted a September 20, 2005 correspondence from a private doctor (Dr. D.T.E.) who stated that he put the Veteran on bedrest for six weeks to see if the Veteran's chronic low back pain would improve.  He noted that the bedrest did not improve the Veteran's condition.  

VA outpatient treatment records reflect that the Veteran underwent x-rays in November 2005.  They revealed disc disease at L5-S1 and mild scoliosis.  

VA outpatient treatment records reflect that the Veteran underwent a CT scan in January 2006.  It revealed mild broad based disc protrusions at L3-L4 and L4-L5 resulting in mild narrowing of the neural foramen, bilaterally, without evidence of nerve root impingement or canal stenosis; mild facet hypertrophy at L5-S1, bilaterally, and L4-L5 on the right; and partial transitional vertebral body on the left at the lumbosacral junction.  

The Veteran underwent an MRI in July 2007.  The MRI revealed disk degeneration with disk bulges involving L3-4 and L4-5; multilevel facet degeneration; and bilateral caudal neural foraminal narrowing at L4-5.  

VA outpatient records dated December 2007 show that the Veteran underwent facet injections to L3-4, L4-5, and L5-S1.  The Veteran underwent bilateral SI joint injections in January 2008.    

A June 2008 report from Maine Disability Determination Services reflects that the Veteran achieved forward flexion of the thoracolumbar spine to 30 degrees; extension to 0 degrees; right and left lateral bending to 30 degrees; and right and left rotation to 30 degrees.  His lower leg and foot strength was 5/5 on the right and 4/5 on the left.  The examiner noted that the Veteran had multiple medical problems and that his mobility was compromised in that he needed a cane for ambulation.  He stated that sitting, standing, and walking should be limited to 30 minutes at a time. The Veteran was to avoid any forward bending; and he was to avoid lifting, carrying, or pulling anything over 10 pounds.  He could readily pick up and handle light objects.   

A December 2009 SSA Decision reflects that the Veteran had not been engaged in substantial gainful activity since July 26, 2006, as a result of degenerative disc disease of the cervical and lumbar spines and osteoarthritis of the knees.  

In a March 2011 Memorandum, the C&P Director evaluated the Veteran's low back injury and corresponding residuals for consideration of extraschedular ratings under the provisions of 38 C.F.R. § 3.321(b)(1).  The Director concluded that the evidence did not adequately demonstrate such an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards.

The Veteran underwent a VA examination in February 2012.  The claims file was reviewed in conjunction with the examination.  The Veteran continued to complain of back pain.  He stated that increased morphine taken in the morning had helped; but that he still took 6 Vicodin per day.  He rated his pain at a 5 on a scale of 1-10; but the pain became much more severe when his medication wore off.  He denied flare-ups that limited the function of his spine.  Upon examination, he achieved forward flexion to 70 degrees (with pain at 40 degrees); extension to 20 degrees (with pain at 10 degrees); right lateral flexion to 15 degrees (with pain at 10 degrees); left lateral flexion to 15 degrees (with pain at 15 degrees); right and left rotation to 25 degrees (with pain at 25 degrees bilaterally).  He was able to perform repetitive-use testing with three repetitions.  After three repetitions, he was able to achieve 60 degrees of flexion; 15 degrees of extension; 10 degrees of right lateral flexion; 15 degrees of left lateral flexion; and 25 degrees of rotation bilaterally.  Range of motion was limited by pain on movement.  There was no guarding or muscle spasm.  The examiner noted moderate radiculopathy in the lower extremities, and moderate paresthesias and/or dysesthesias in the left lower extremity.  The examiner stated that the Veteran had intervertebral disc syndrome of the thoracolumbar spine; but that he did not have any incapacitating episodes over the past 12 months.  The Veteran used a cane for walking.  

The examiner stated that the Veteran would need to undergo EMG/NCS to verify any objective neuropathy.  The Veteran was offered an examination; but he refused (saying that it was too far away and that he pneumonia).  Efforts were made to schedule the examination closer to the Veteran; and the examiner found that there was no evidence that the Veteran had pneumonia.  The examination was scheduled; but the examiner was fearful that the Veteran would not show.  In fact, the Veteran did not show or provide good cause for his failure to report.  The examiner submitted a March 2012 addendum opinion in which he stated that he could make no additional findings due to lack of testing.  

In order to warrant a rating in excess of 40 percent, the Veteran's low back disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine (Diagnostic Code 5235-5242); or incapacitating episodes having a total duration of at least six weeks during the past 12 months (Diagnostic Code 5243).  Under Diagnostic Codes 5292 and 5295 (prior to September 26, 2003) a rating of 40 percent was the maximum allowable rating.  

The Veteran underwent VA examinations in November 2003, May 2004, and February 2012.  

He was able to achieve forward flexion to 40 degrees with pain beginning at 30 degrees (November 2003); 75 degrees with pain beginning at 20 degrees (May 2004); and 70 degrees with pain beginning at 40 degrees (February 2012).  The Board notes that even after repetitive testing at the Veteran's February 2012 examination, the Veteran was able to achieve flexion to 60 degrees.  There is no medical evidence that the Veteran experienced unfavorable ankylosis of the entire thoracolumbar spine.  

In regards to DeLuca criteria, the February 2012 VA examiner acknowledged that repetitive range of motion testing did result in additional limitation of motion due to pain on movement.  However, even with the additional limitation of motion, the Veteran was able to forward flex to 60 degrees.  There was no weakened movement, excess fatigability, incoordination, or instability.  There is no medical evidence to show that there is any additional loss of motion of the lumbar spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 40 percent.

Consequently, the Board finds that a rating in excess of 40 percent is not warranted under Diagnostic Codes 5235-5242.  

However, the Board notes that a September 2005 correspondence from Dr. D.T.E. shows that the Veteran was placed on bedrest for six weeks to see if the Veteran's chronic low back pain would improve.  The Board notes that pursuant to Diagnostic Code 5243, a 60 percent disability rating is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  In the absence of any evidence to the contrary, and in giving the benefit of the doubt to the Veteran, the Board finds that a 60 percent rating is warranted for the 12 month period in which the Veteran was incapacitated by six weeks of bedrest.  The 60 percent rating is effective from September 21, 2004 through September 20, 2005 (the date of the Dr. D.T.E. correspondence).  The evidence does not show incapacitating episodes with prescribed bedrest at any other time during the rating period on appeal.

The Board acknowledges the Veteran's contention that his lumbosacral radiculopathy should be rated at 100 percent effective July 22, 2003 (the date Dr. G.C. stated that he could no longer work).  The Board finds the Veteran's reporting of symptoms to be credible.  However, the symptoms simply do not warrant higher ratings under the appropriate diagnostic codes as explained above.  

Additionally, the Board notes that the Veteran has been granted a 10 percent rating for left lower extremity radiculopathy associated with lumbosacral radiculopathy.  The Veteran underwent a February 2012 VA examination; but the examiner found that the Veteran would need to undergo EMG/NCS to verify any objective neuropathy.  He was scheduled for such an examination; but he failed to report or offer good cause as to why he failed to report.  The examiner submitted a March 2012 addendum opinion in which he stated that he could make no additional findings due to lack of testing.  Court has held that VA's duty to assist a claimant in developing the facts and evidence pertinent to a claimant's claim is not a one- way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  It is the responsibility of claimants to cooperate with VA.  See Caffrey v. Brown, 6 Vet. App. 377, 383; Olson v. Principi, 3 Vet. App. 480, 483 (1992).  In light of the above, the Board finds that an increased rating for left lower extremity radiculopathy is not warranted. 

For the foregoing reasons, the Board finds that the claim for a higher rating is granted to the following extent-60 percent from September 21, 2004 through September 20, 2005.  Higher or separate ratings are not warranted.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against even higher or separate ratings, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The Board notes that, because of the Veteran's dynamic symptoms, a rating stage is less than a previous stage.  Because the Veteran's disability rating was never reduced below the level that was appealed (40 percent), the reduction procedures of 38 C.F.R. § 3.105(e) and the "stabilization" provisions of 38 C.F.R. § 3.344 are not for application.  See Singleton v. Shinseki, 659 F.3d 1332, 1334-36 (Fed. Cir. 2011); O'Connell v. Nicholson, 21 Vet. App. 89, 94 (2007).


Extraschedular Rating

The regulation in question provides that ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience.  To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b) (2012).

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extraschedular provisions of 38 C.F.R. § 3.321(b).  The Court held that the determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry.  Id. at 115.  In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements."

The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Thun, 22 Vet. App. at 115.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Id.  This task is to be performed by the RO or the Board.  Id.  

If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  Thun, 22 Vet. App. at 116.  Such factors include "marked interference with employment" and "frequent periods of hospitalization."  Id.  This task is also to be performed by the RO or the Board.  Id.

If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of [C&P] for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating.  Id.  The Court has held that neither the RO nor the Board is permitted to assign an extraschedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating.  Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)).  

As noted previously, the claims file was forwarded to the C & P Director in March 2011; that is, the case was referred to the Director for consideration of entitlement to an extraschedular rating for the Veteran's service-connected lumbosacral radiculopathy.  As set forth above, this action presupposes that the first two Thun elements were met.  That is, it was determined that the low back disability presents such an exceptional disability picture that the available schedular evaluations are inadequate and the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  The claim cannot reach the third Thun element without the first two being established.

Here, the Veteran's case was referred to the C&P Director who determined that the Veteran was not entitled to an increased rating for lumbosacral radiculopathy on an extraschedular basis.  Because the case has already been referred to the C&P Director, there is effectively no longer any remaining allegation of error of fact or law concerning this aspect of the appeal.  That is, the Board has no authority to award a higher rating on an extraschedular basis or compel the C&P Director (or the Under Secretary for Benefits) to do so.

To explain further, the Board notes that the Federal Circuit addressed the matter when it reviewed and affirmed the Court's Thun decision.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  Significantly, the Federal Circuit's Thun decision was also subsequent to the Court's Anderson decision.  The Federal Circuit expressly stated that "only the Under Secretary [for Benefits] and the [C&P] Director have the authority to award an extraschedular rating."  Thun, 572 F.3d at 1370 (emphasis added).  The Federal Circuit found that, at a minimum, the ROs and the Board were intended to play some role in evaluating a claim for an extraschedular rating.  Id.  However, "[p]ermitting the regional offices and the Board to issue a 'field station submission' in which they recommended extraschedular consideration still reserves to the Under Secretary and the Director the ultimate authority to 'approve' those recommendations based on whether the Veteran should receive an extraschedular rating 'to accord justice.'"  Id. (emphasis added).

The Federal Circuit, in fact, stated that the Court held that "while the Under Secretary for Benefits and the Director of the Compensation and Pension Service are the only individuals authorized to assign an extraschedular rating, [ROs] and the Board of Veterans' Appeals may conduct initial screening of disability claims and may refer . . . only those claims that meet two of the three regulatory criteria for extraschedular consideration."  Thun, 572 F.3d at 1367 (citing Thun, 22 Vet. App. at 111).  Lastly, the Federal Circuit stated that its interpretation did not restrict the opportunity for judicial review.  "If the regional office or the Board makes factual findings adverse to the claimant with regard to the extraschedular claim, those findings will be reviewable by the Veterans Court . . . just as would be the case if those findings were made by the Under Secretary or the Director."  Thun, 572 F.3d at 1371.

Given the Federal Circuit's interpretation of the extraschedular provisions of 38 C.F.R. § 3.321(b), only the C&P Director or Under Secretary for Benefits have the authority to award an extraschedular rating.  The Board possesses no such authority be it in the first instance or any instance.  The Court, in Anderson, indicated that the Board may have purview over the third Thun element.  See Anderson, 22 Vet. App. at 428-29.  However, as noted previously, Anderson was decided before the Federal Circuit affirmed the Court's Thun case and interpreted its meaning as well as that of 38 C.F.R. § 3.321(b).  

The concurrence opinion in Anderson, although addressing a different aspect of the extraschedular process, provided some insight into why the Federal Circuit's holding is the appropriate result.  The concurrence noted that the delegation of authority for the Director of C&P to assign an extraschedular rating is appropriate, given that the Director of C&P has been delegated the authority to draft the rating schedule, based on "as far as practicable, upon average impairments of earning capacity resulting from such injuries in civil occupations."  Anderson, 22 Vet. App. at 431 (Schoelen, J., concurring) (citing 38 U.S.C. §§ 501(a), 1155; 38 C.F.R. §§ 2.6(b)(1), 3.100).  "This makes the Director of C&P uniquely suited to determining what extraschedular rating level is warranted.  On the other hand, the RO and the Board have expertise in applying facts of each respective case to the rating schedule."  Id. (citing Moore v. Nicholson, 21 Vet. App. 211, 218 (2007)).

The role of the Board is to apply the laws and regulations to the facts of the case.  See 38 U.S.C.A. § 7104 (West 2002).  The provisions of 38 C.F.R. § 3.321(b) allow that an extraschedular rating will be assigned so as to "accord justice."  Justice is "the principle or ideal of moral rightness."  Webster's II New Riverside University Dictionary 659, 660 (1988).  The Board, however, does not address such matters except in the limited application of the first two steps as set forth in Thun.  The authority to decide the equitable question set forth in the third step in Thun-the assignment of ratings necessary to accord justice-is entrusted to the Director or Under Secretary, not the Board.  Cf. Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (only the Secretary, and not the Court or the Board, has the authority to award equitable relief under 38 U.S.C.A. § 503(a)).

In sum, with respect to the assignment of an extraschedular rating to "accord justice" (i.e. equity), only the Under Secretary for Benefits and the C&P Director have been delegated the authority to award the extraschedular rating.  Thun, 572 F.3d at 1370.  In the Veteran's case, because the Board does not possess the authority to accord justice (or have any basis for arriving at an equitable determination) by awarding an extraschedular rating, an extraschedular rating for lumbosacral radiculopathy is denied.

TDIU

The grant of TDIU is an award of increased disability compensation for purposes of assigning an effective date.  Dalton v. Nicholson, 21 Vet. App. 23 (2007); Wood v. Derwinski, 1 Vet. App. 367, 369 (1991).  The assignment of effective dates for increased ratings is governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.400 (2012).

The statute provides, in pertinent part, that: 

(a) Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.

(b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C.A. § 5110(a), (b).

The pertinent provisions of 38 C.F.R. § 3.400 clarify that:

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.

(o)(2) Disability compensation.  The date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.  38 C.F.R. § 3.400(o).

The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows:  If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim.  If the increase occurred after the date of the claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998).

VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service connected disabilities, from obtaining or maintaining "substantially gainful employment" consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2012); VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).

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 regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more 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.  Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability.  38 C.F.R. § 4.16(a).

The Board must evaluate whether there are circumstances in the Veteran's case, apart from any nonservice connected condition and advancing age, which would justify a TDIU due solely to the service-connected conditions.  See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993).  Marginal employment shall not be considered substantially gainful employment.  38 C.F.R. § 4.16(a).

However, VA policy is to grant a TDIU in all cases where service connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b).  The Court has indicated that the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is referred to VA's Director of C&P for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b).  Bowling v. Principi, 15 Vet. App. 1 (2001).

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).

When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits.  See, e.g., Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992); Lalonde v. West, 12 Vet. App. 377, 380-81 (1999).  Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim.  See 38 C.F.R. § 3.155(a).

Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. 

A medical report may be an informal claim to increase or reopen a previous compensation determination when the report relates to a disability for which service connection has previously been established.  MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed.Cir. 2006) (interpreting 38 C.F.R. § 3.157(b)(1)).

Under 38 C.F.R. § 3.157, a report of treatment or examination can constitute an informal claim for increase if it contains sufficient information.  A private treatment record is deemed to be an informal claim as of the date of its receipt, while a VA record constitutes an informal claim as of the date of the treatment or examination. Id. 

The Court has held that entitlement to a TDIU is an element of all claims for an increased rating or higher initial rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (Fed. Cir. 2009).  Thus, when entitlement to a TDIU is raised during the appeal of a rating for a disability, it is part of the underlying claim for benefits.  Rice, 22 Vet. App. at 454.

On September 17, 2003, the Veteran filed a claim seeking service connection for an injury to the lower back with pain, numbness, and tingling down his left leg.  In support of his claim, he asked that treatment records from the Concord Medical Group (for the period from July 22, 2003 to the present) be obtained.  The RO obtained these records, and they included a December 4, 2003 treatment report in which Dr. G.C. assessed the Veteran with lumbar disc syndrome with sciatica.  He also stated that the Veteran was totally disabled from July 22, 2003.   

The Veteran's September 2003 claim included evidence of medical disability as shown by his report of treatment.  His claim is presumed to have been for the highest rating possible.  AB v. Brown, 6 Vet. App. 35 (1993).  The medical records referred to by the Veteran contained evidence that he was unemployed.  Thus, the September 2003 claim can be construed as encompassing a claim for TDIU. Roberson, 251 F.3d at 1378; see also 38 C.F.R. § 3.157.

Significantly, the Veteran did not meet the schedular criteria for a TDIU prior to December 16, 2003.  Service connection was in effect for the following disabilities prior to that date:  lumbosacral radiculopathy, rated 40 percent disabling, effective September 17, 2003; and left lower extremity radiculopathy associated with lumbar radiculopathy, rated 10 percent disabling effective September 17, 2003.  His combined disability rating was 50 percent from September 17, 2003 to December 15, 2003; 60 percent effective December 16, 2003; and 70 percent disabling effective August 8, 2009.  His combined disability rating was never 70 percent at any time prior to December 16, 2003; nor did he have a single service-connected disability ratable at 60 percent.  Thus, he did not meet the scheduler criteria for a TDIU prior to that date.  See 38 C.F.R. § 4.16(a).

In a November 2012 Memorandum, the Compensation Director evaluated the Veteran's TDIU claim under the provisions of 38 C.F.R. § 4.16(b).  The Director concluded that the evidence did not adequately demonstrate that the Veteran's service-connected lumbar and left leg radiculopathies were sufficiently incapacitating to render him unemployable.  Accordingly, the Director found that the Veteran was not entitled to a TDIU on an extraschedular basis at any time prior to December 16, 2003. 

The Veteran is competent to report his employment history.  Furthermore, his reports are generally consistent with the evidence of record and there is nothing to explicitly contradict them.  Thus, the Board concludes that his reports are also credible.

Similar to the aspect of the appeal pertaining to a an extraschedular evaluation under 38 C.F.R. § 3.321(b), the authority to grant a TDIU rating on an extraschedular lies with only the Director of C&P, now the Compensation Director.  See 38 C.F.R. § 4.16(b); Thun, 572 F.3d at 1366.  The Veteran did not meet the schedular requirements for a TDIU prior to December 16, 2003, the case was referred to the appropriate VA component that has the authority to grant an extraschedular TDIU, and the rating was denied.  As the Veteran is in receipt of a schedular TDIU from the earliest date permissible, an effective date earlier than December 16, 2003 must be denied.


	(CONTINUED ON NEXT PAGE)


ORDER

Entitlement to a rating in excess of 40 percent for service-lumbosacral radiculopathy, prior to September 21, 2004, and from September 21, 2005, is denied.  

Effective September 21, 2004 through September 20, 2005, a rating of 60 percent, but no higher, is granted for the Veteran's service-connected lumbosacral radiculopathy, subject to the laws and regulations governing the payment of monetary awards.

An extraschedular rating for service-connected lumbosacral radiculopathy is denied.

An effective date earlier than December 16, 2003, for the award of a TDIU is denied.



______________________________________________
RYAN T. KESSEL
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs