Citation Nr: 1317990 Decision Date: 06/03/13 Archive Date: 06/11/13 DOCKET NO. 04-29 884 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to a referral for extraschedular consideration of the rating assigned for lumbar degenerative joint and disc disease, residuals of thoracolumbar vertebrae fractures, and thoracolumbar disorder, for the period from August 10, 2000, to May 15, 2009. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from March 1976 to March 1980, and from February to July 1991. This matter originally came to the Board of Veterans' Appeals (Board) from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted entitlement to service connection for lumbar degenerative disc and joint disease, status post fracture at L1, L2, and T12, and assigned an initial 30 percent disability rating effective August 10, 2000. Before the appeal was certified to the Board, in an April 2005 rating decision, the RO increased the rating for the appellant's lumbar degenerative disc and joint disease, status post fracture at L1, L2, and T12, to 40 percent, effective December 29, 2004. In December 2007, the appellant testified at a Board videoconference hearing before the undersigned Veterans Law Judge. In January 2008, the Board remanded the matter to the RO for additional evidentiary development. Following the completion of that development, in a November 2010 decision, the Board, inter alia, (1) denied entitlement to an initial rating in excess of 30 percent for thoracolumbar vertebrae fracture residuals for the period from August 10, 2000, to December 29, 2004; (2) denied entitlement to an initial rating in excess of 40 percent for thoracolumbar vertebrae fracture residuals for the period from December 29, 2004, to May 14, 2009; and (3) determined that an initial 50 percent rating, but no higher, was warranted for thoracolumbar vertebrae fracture residuals, from May 15, 2009. The appellant appealed the Board's November 2010 decision to the United States Court of Appeals for Veterans Claims (Court). While the matter was pending before the Court, in May 2011, the appellant's then-attorney, Joseph J. Donnelly, Esq., and a representative of VA's Office of General Counsel filed a Joint Motion for Remand with the Court. In a May 2011 order, the Court granted the motion and vacated that portion of the Board's November 2010 decision which, in pertinent part, denied: (1) entitlement to a rating in excess of 30 percent for lumbar degenerative disc and joint disease, status post fractures at L1, L2, and T12 (residuals of thoracolumbar vertebrae fractures), from August 10, 2000, to December 28, 2004; (2) entitlement to a rating in excess of 40 percent for residuals of thoracolumbar vertebrae fractures for the period from December 29, 2004, to May 14, 2009; and (3) entitlement to a rating in excess 50 percent for residuals of thoracolumbar vertebrae fractures for the period from May 15, 2009. In an August 2011 decision, the Board, in pertinent part, (1) denied entitlement to an initial rating in excess of 30 percent for lumbar degenerative disc and joint disease, status post fractures of L1, L2, and T12, for the period from August 10, 2000, to December 28, 2004; (2) denied entitlement to an initial rating in excess of 40 percent for lumbar degenerative disc and joint disease, status post fractures of L1, L2, and T12, for the period from December 29, 2004, to May 14, 2009; (3) granted entitlement to a separate 10 percent disability rating for compression fractures involving the thoracic and lumbar vertebrae for the period from August 20, 2000 to May 14, 2009, to the extent not already in effect; and (4) denied entitlement to an initial rating in excess of 50 percent for lumbar degenerative disc and joint disease, status post fractures of L1, L2, and T12, for the period from May 15, 2009. The Board remanded the issue of entitlement to a total rating based on individual unemployability due to service-connected disability to the RO for additional evidentiary development and due process considerations. The appellant appealed the Board's August 2011 decision to the Court. In December 2012, the appellant's then-attorney, Virginia A. Girard-Brady, Esq., and a representative of VA's Office of General Counsel filed a Joint Motion for Partial Remand. In a December 2012 order, the Court granted the joint motion and vacated "that part of the Board's decision only to the extent that it denied entitlement to a referral for extraschedular consideration for service connected back disabilities, which are characterized as lumbar degenerative joint disease and joint disease [sic], residuals of thoracolumbar vertebrae fractures, and thoracolumbar disorder." The Court remanded the matter for action consistent with the terms of the joint motion. The appeal as to the remaining issues addressed in the Board's August 2011 decision was dismissed. While the appellant's appeal was pending before the Court, the RO continued its development of the issue remanded by the Board in its August 2011 decision, i.e., entitlement to a total rating based on individual unemployability due to service-connected disability. In a September 2011 rating decision, the RO granted a total rating based on individual unemployability due to service-connected disability, effective May 15, 2009. The appellant was duly notified of the RO's determination and his appellate rights in an October 2011 letter. The record currently available to the Board, including the appellant's Virtual VA file, contains no indication that the appellant initiated an appeal of the RO's determination, including the downstream element of effective date. Thus, the issue is no longer in appellate status. In light of the conclusion that the appellant met the criteria for a total rating based on individual unemployability due to service-connected disability, effective May 15, 2009, the issue of an extraschedular evaluation from that date is moot. The Court has expressly held that "[c]onsistent with VA regulations and Court precedent, extraschedular consideration may be warranted for disabilities that present a loss of earning capacity that is less severe than one where the veteran is totally unemployable." Thun v. Peake, 22 Vet. App. 111, 117 (2008) (emphasis added). Thus, the Board has characterized the remaining issue on appeal as set forth on the cover page of this decision. Finally, following July 2011 and February 2013 Court orders granting attorney fees under the Equal Access to Justice Act, Mr. Donnelly and Ms. Girard-Brady, elected not to continue their representation of the appellant before VA. As set forth above, the appellant is currently represented in this appeal by The American Legion. FINDING OF FACT For the period from August 10, 2000, to May 15, 2009, the disability picture presented by lumbar degenerative joint and disc disease, residuals of thoracolumbar vertebrae fractures, and thoracolumbar disorder, was not so exceptional or unusual as to render the schedular evaluation inadequate, with related factors such as marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for entitlement to a referral for extraschedular consideration for lumbar degenerative joint and disc disease, residuals of thoracolumbar vertebrae fractures, and thoracolumbar disorder, for the period from August 10, 2000, to May 15, 2009, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 3.321(b)(1) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties under the VCAA. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). With respect to VA's notice obligations, because the matter at issue in this case concerns an appeal of an initial rating, VCAA notice obligations were fully satisfied once service connection was granted. Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006). The record does not show, nor does the appellant contend, that any notice deficiencies resulted in prejudice. See Goodwin v. Peake, 22 Vet. App. 128 (2008). With respect to VA's duty to assist, the Board finds that no further action is necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA has duly assisted the appellant in obtaining the relevant evidence needed to substantiate his claim, and as warranted by law, affording him VA medical examinations. Neither the appellant nor his representative has specifically identified any available outstanding and relevant evidence nor has he challenged the adequacy of the examinations obtained. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that in the absence of a challenge, the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or development action is necessary. The Board's conclusion in this regard is strengthened by the fact that the issue of VA's compliance with the VCAA was previously discussed in detail in the now vacated August 2011 Board decision. Neither the December 2012 joint motion for remand nor the Court's December 2012 order vacating the Board's August 2011 decision referenced any VCAA deficiency. Moreover, neither party raised the issue of any deficiency with the undersigned's compliance with VA's duties under 38 C.F.R. § 3.103 at the December 2007 Board hearing. In light of the Court's repeated admonitions regarding the undesirable specter of piecemeal litigation, the Board is confident that if there had been any prejudicial deficiencies regarding VA's compliance with its duties to notify and assist, such would have been raised by the Court. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Applicable Law VA's Rating Schedule is primarily a guide for evaluating disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2012). Generally, 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. Id; see also 38 C.F.R. § 3.321(a). Because the disability ratings are averages, "it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability." Thun v. Peake, 22 Vet. App. 111, 114 (2008). In exceptional cases where the schedular evaluations are found to be inadequate, however, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321, an extra-schedular 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)(1). In Thun, the Court fashioned a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Analysis Applying the facts in this case to the legal criteria set forth above, the Board finds that the preponderance of the evidence is against a referral for extraschedular consideration for the appellant's service-connected thoracolumbar back disability for the period from August 10, 2000, to May 15, 2009. As a preliminary matter, the evidence preponderates against finding exceptional or unusual factors which render application of the schedule impractical or inadequate. The Board has compared the level of severity and symptomatology of the appellant's service-connected back disability with the applicable rating criteria and concludes that such criteria reasonably describe his disability level and symptomatology. As delineated in detail in the Board's August 2011 decision, for the period from August 10, 2000, to December 28, 2004, the appellant's disability was assigned a 30 percent combined rating in consideration of symptoms which included his reports of chronic, radiating low back and mid thoracic pain which increased with activities such as prolonged sitting, standing, or walking, or with sudden turning. These symptoms reportedly resulted in guarding and required the appellant to modify his activities such as by using a pillow while driving or walking slowly and carefully. There was a decreased range of thoracolumbar motion, including forward flexion limited by pain to 60 degrees; painful motion; and radiographic evidence of compression fractures of the thoracolumbar vertebrae. There was no significant neurological disability or findings of an intervertebral disc syndrome. The Board concluded that these symptoms more nearly approximated the criteria for a 30 percent disability rating under 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5292 (2002) (providing for a 20 percent rating for moderate limitation of motion of the lumbar spine, with a separate 10 percent rating for demonstrable deformity of a vertebral body), and that the functional impairment exhibited by the appellant did not rise to the level for a higher disability rating pursuant to 38 C.F.R. §§ 4.40 and 4.45 (providing for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance). In its August 2011 decision, the Board also expressly considered alternative rating criteria, including both the old and amended rating criteria for evaluating the appellant's disabilities of the spine, including intervertebral disc syndrome, but concluded that a rating in excess of 30 percent was not warranted for the period from August 10, 2000, to December 28, 2004. For the period from December 29, 2004, the appellant's disability was assigned a 40 percent rating in consideration of the symptoms described above with the additional loss of motion exhibited by the appellant at a December 29, 2004, VA medical examination, i.e. forward flexion to 60 degrees with reported pain beginning at 30 degrees. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243 (2004). Again, the Board expressly considered both the old and amended rating criteria as well as the appellant's additional symptomatology of pain and functional loss in assigning the 40 percent rating, but concluded that the level of symptomatology did not warrant the assignment of a rating in excess of 40 percent. The additional symptomatology expressly considered by the Board included restrictions due to pain and functional loss in performing activities of daily living such as being very slow when mowing his lawn or performing other activities requiring weight bearing. The Board also notes that effective December 1, 2004, the appellant was assigned separate 10 percent ratings for right and left lower extremity radiculopathy, as well as an additional 10 percent rating for thoracolumbar vertebrae compression fractures from August 10, 2000, to May 15, 2009. In this decision, the Board has carefully reviewed the record and finds no additional symptomatology associated with his service-connected back disability not contemplated by the currently assigned ratings discussed above. Moreover, there were no unusual clinical aspects of the service-connected back disability noted in the medical records, and the appellant and his representative have neither identified such nor indicated that such existed. The Board further finds that the appellant's disability picture was not manifested by related factors such as a marked interference with employment and frequent periods of hospitalization beyond that contemplated by the currently assigned ratings. In that regard, the record does not show, nor does the appellant contend, that he was hospitalized as a result of his service-connected back disability during the term at issue. Additionally, from August 10, 2000, to May 15, 2009, the evidence shows that the appellant's service-connected back disability did not cause marked impairment beyond that contemplated by the assigned schedular ratings. For example, the record contains an October 2000 private clinical record noting that the appellant was then employed full time at a correctional facility. His physician indicated that the appellant was capable of performing activities such as office work, escorting prisoners, using firearms, and certain maintenance duties, although he should not engage in activities such as tackling prisoners or excessive walking, bending, stooping or lifting. At a VA medical examination in April 2003, the appellant reported that he was employed full time in an administrative capacity at a correctional facility and had lost no time from work as a result of his service-connected low back disability. The record reflects that the appellant retired from his civilian job in 2004 after which he continued to work part time in retirement. At December 2004 VA medical examinations, the appellant was noted to be retired from both military and civilian employment. The examiner determined that the appellant was able to perform activities of daily living, including cutting the grass and other weightbearing activities, albeit slowly. At his December 2007 Board hearing, the appellant testified that he worked part time at a golf course, approximately six hours daily. He indicated that he would be able to work a lot more but for limitations caused by his service-connected back disability. At a VA medical examination in mid May 2009, it was again noted that the appellant was retired. The examiner concluded that the appellant's service-connected back disability had no impact on his ability to perform activities such as feeding himself, bathing and grooming; a mild to moderate impact on his ability to perform chores, go shopping, play sports, and travel; and a severe impact on his ability to exercise. The examiner also commented that the appellant was unable to ride in a car for any length of time due to severe pain. The Board has also considered the September 2004 record in which a private physician indicated that pursuant to Labor Department Criteria, the appellant was disabled from full time employment, including on a sedentary basis, due to thoracolumbar degenerative disc disease. The Board finds, however, that the other evidence of record, including the multiple medical examinations and records discussed above, outweighs this piece of evidence. In other words, the Board concludes that the preponderance of the evidence shows that for the period from August 10, 2000, to May 15, 2009, the appellant's service-connected lumbar degenerative joint and disc disease was not productive of a marked interference with employment beyond that contemplated by the schedular criteria. Again, although the appellant's service-connected back disability clearly had an adverse impact his activities during this period, including his ability to engage in certain employment activities, this was reflected in the schedular disability ratings assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified 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." See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In view of the foregoing discussion, the Board concludes that for the period from August 10, 2000, to May 15, 2009, the disability picture presented by the appellant's lumbar degenerative joint and disc disease, residuals of thoracolumbar vertebrae fractures, and thoracolumbar disorder, was not so exceptional or unusual as to render the schedular evaluation inadequate, with related factors such as marked interference with employment or frequent periods of hospitalization. Under these facts, referral to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating is not warranted. In this regard, the preponderance of the evidence is against the claim. 38 U.S.C.A. § 5107(b). ORDER Entitlement to a referral for extraschedular consideration of the appellant's lumbar degenerative joint and disc disease, residuals of thoracolumbar vertebrae fractures, and thoracolumbar disorder, for the period from August 10, 2000, to May 15, 2009, is denied. ______________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs