Citation Nr: 1327563 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 07-06 287A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an extraschedular rating for lumbar spondylolisthesis L5-S1 with spondylosis ("lumbar spine disability") from July 3, 2007. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Snyder, Counsel INTRODUCTION The Veteran served on active duty from May 1965 to May 1968. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision by the Houston, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which denied an evaluation in excess of 10 percent for the lumbar spine disability. In an August 2007 rating decision, a 20 percent evaluation was assigned effective July 3, 2007. The Veteran continued his appeal with regard to evaluation of both stages. In a May 2009 decision, the Board denied entitlement to increased schedular evaluations before and after July 3, 2007. The question of entitlement to extraschedular evaluation of the lumbar spine disability since July 3, 2007, was remanded for additional development and referral of the matter to the Director of Compensation and Pension Service (C&P). The Board again remanded the matter in July 2010 for full compliance with the May 2009 remand directives. The Veteran presented testimony at a videoconference hearing before the undersigned Acting Veterans Law Judge in June 2012. A transcript is of record. The issue of service connection for numbness of the right lower extremity has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). It also appears the Veteran may be seeking an increased schedular rating for his lumbar spine disability; this also has not been adjudicated by the AOJ. The Board does not have jurisdiction over either claim and they are referred to the AOJ for appropriate action. FINDING OF FACT The Veteran's lumbar spine disability does not present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for assignment of an extraschedular rating for a lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 3.321(b) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). The rating schedule is generally deemed adequate to rate a disability. 38 C.F.R. § 3.321(a) (2012). In exceptional cases where schedular evaluations are found to be inadequate, the RO may refer a claim to the Director of C&P for consideration of an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. See 38 C.F.R. § 3.321(b)(1) (2012). 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. Id. There is a three-step analysis for determining whether an extra-schedular evaluation is appropriate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). First, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id. at 115-16; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. at 116. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. 88, 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extra-schedular rating aspect of this claim"); see also 38 U.S.C.A. §§ 511(a), 7104(a) ("All questions in a matter...subject to decision by the Secretary shall be subject to one review on appeal to the...Board."). As noted in the Introduction, the Board previously remanded the issue of entitlement to an extraschedular rating for additional development. In pertinent part, the Board instructed the RO/AMC to refer the claim to the Director of C&P for consideration of whether assignment of an extraschedular rating is warranted under 38 C.F.R. §3.321(b)(1). The Board noted that during the course of the appeal, the lumbar spine disability appeared to have caused interference with employment. The Board concluded that although the Veteran was self-employed, his lumbar spine disability caused limited ability to stand, walk, and do other activities, particularly during flare-ups, and caused him to limit the hours and duties associated with employment. The Board thus determined that the lumbar spine disability presented an exceptional and unusual disability picture which warranted referral for extraschedular consideration. Pursuant to the Board's remands, the AMC obtained a social work and industrial survey in February 2010 and then referred the issue of entitlement to an extraschedular rating to the Director of C&P for consideration of whether assignment of an extraschedular rating is warranted under 38 C.F.R. §3.321(b)(1) or 38 C.F.R. § 4.16(b). The requested opinion was provided in December 2011. The February 2010 social work and industry survey reflects the examiner's determination that it "appear[ed] within medical reasonability that the Veteran's pain interferes with mood and irritability and that his back pain interferes with his bending and lifting and reduces his efficiency in his manual labor career." However, the examiner further found it "reasonable that the Veteran is able to work more often but business in his industry is seasonal at best and his pain limits his ability to work much more in this field as it requires activities that likely aggravate his back condition." The examiner added that the Veteran's strong character traits would impact and impair his ability to work in a field that required consistent interpersonal interaction and that the Veteran likely would do best working in a field where he could have personal flexibility. The Director noted that service connection was in effect for a lumbar spine disability and left lower extremity radiculopathy, with a combined rating of 30 percent, and that the Veteran had not been gainfully employed on a full-time basis since 2008, instead working limited hours per week and limited months each year. The Director further noted that the Veteran was in receipt of Social Security Administration disability benefits since November 2008, though it was unclear which condition or conditions formed the basis for the entitlement to the benefits. The Director reported that although the Veteran used a cane and a back brace, the outpatient treatment records indicated that the Veteran used the cane due to bilateral knee osteoarthritis and did not "often" use the brace. The Director indicated review of the February 2010 social work and industrial survey, noting that the examiner determined that although the Veteran's back pain interfered with mood and reduced efficiency in manual labor positions, it was "reasonable" that the Veteran is able to work more often, except the business in his industry is seasonal at best. The Director also indicated review of the July 2007 VA examination record, wherein the Veteran reported flare-ups with bending and moving. The Director noted that the Veteran did not have a history of back surgery or incapacitating episodes requiring physician-prescribed bedrest and that the main problem associated with the lumbar spine disability was pain, with no specific evidence of fatigue, weakness, lack of endurance, or lack of coordination. The Director concluded that no unusual or exception disability pattern had been demonstrated that would render application of the regular rating criteria impractical. The Director explained that the evidentiary record did not demonstrate that the symptomatology consistently associated with the lumbar spine disability and associated radiculopathy was not wholly contemplated by the criteria utilized to assign the rating. The Director added that there was no evidence of surgical procedures or hospitalization and that the evidence did not demonstrate that the service-connected disabilities prevented the Veteran from performing the type of work he had been performing for over 20 years. The Board agrees that the Veteran's lumbar spine disability does not warrant the award of an extraschedular evaluation and finds that the preponderance of the evidence does not support such assignment. The Veteran does not allege and the evidence does not suggest that he has had hospitalizations for the lumbar spine disability during the period on appeal. The Board acknowledges the Veteran's report of impaired occupational functioning, notably limiting his working hours to approximately 10 to 15 hours per week and limiting duties so as to avoid heavy lifting and to minimize bending. However, the rating criteria and the currently assigned 20 percent rating consider limitation of motion and pain, to include during flare-ups, and provide higher ratings for increased limitation of motion. The rating criteria and the currently assigned 20 percent rating also anticipate impairment of occupational functioning. The Board finds the Veteran's occupational impairment does not render the rating criteria impractical so as to require the award of an extraschedular rating. The Veteran remains able to work, and the evidence does not suggest any limitation of ability to perform daily activities or flare-ups requiring bedrest, prolonged cessation of activity, or medical treatment. Furthermore, the evidence, notably the February 2010 social work and industrial survey, does not suggest that the lumbar spine disability would result in significant interference of occupational functioning in a different, less labor-intensive, or non-seasonal occupational field. The Board finds the Veteran's ability to continue working, albeit part-time, significant. The Board acknowledges that in its 2010 decision, it concluded that the Veteran's lumbar spine disability resulted in "marked" impairment of occupational functioning. The Board's previous findings, however, were only a threshold determination for referral. See 38 C.F.R. § 3.321(b). The Board emphasizes that its 2010 findings that referral was warranted are not tantamount to a finding that an extraschedular rating is appropriate and should be assigned. See Anderson v. Shinseki, 22 Vet. App. 423, 426 (2009). Furthermore, the previous finding was based on an incomplete record. Evidence obtained subsequent to the 2010 Board decision, namely the February 2011 social work and industrial survey, indicates that the lumbar spine disability would not prevent the Veteran from working additional hours in a job that was non-seasonal and/or required less bending and lifting, and there is no evidence that the Veteran's lumbar spine disability, alone or in conjunction with the associated radiculopathy, would result in impairment of occupational functioning in a more sedentary occupation. In conclusion, the probative evidence does not indicate that the service-connected lumbar spine disability renders impractical the application of the regular rating schedule. See 38 C.F.R. § 3.321(b). In regards to the statements made by the Veteran, a layperson is competent to testify concerning the onset and continuity of symptomatology, including pain, as this requires only personal knowledge. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the Veteran is not competent to opine if his lumbar spine disability is manifested by unusual or exceptional disability pattern that renders application of the regular rating criteria impractical since he is not familiar with the rating criteria. The Director of C&P, however, is competent to opine if the Veteran is entitled to an extraschedular evaluation and has determined, based on the statements and medical evidence of record, that the Veteran is not entitled to an extraschedular rating for his service-connected lumbar spine disability because there was no unusual or exceptional disability pattern that renders application of the regular rating criteria impractical. Based on the foregoing, entitlement to an extraschedular evaluation for the lumbar spine disability is denied as there is clearly no unusual or exceptional disability pattern that renders the application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1). The Board has considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Although the Veteran has reported some interference with employment and the record indicates that he works part-time, he has never asserted that he is unemployable. In the absence of any evidence suggestive of unemployability due to any of the Veteran's service-connected disabilities, the Board finds Rice is inapplicable. See also Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence necessary to substantiate the claim and the division of responsibilities in obtaining evidence. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO provided the appellant pre-adjudication notice by letter dated in October 2005. Although the letter did not provide notice pertaining to extraschedular consideration or the disability rating and effective date regulations, no prejudice resulted. The Veteran was informed of the rating criteria and effective date provisions in a June 2008 letter, and the claim was readjudicated in an October 2008 supplemental statement of the case. Mayfield, 444 F.3d at 1333. Furthermore, the Veteran was provided notice of 38 C.F.R. § 3.321(b) in the March 2007 statement of the case and May 2010 supplemental statement of the case, and the claim was readjudicated in a January 2012 supplemental statement of the case, which also provided the Veteran with an explanation for the denial of an increased rating on an extraschedular basis. Moreover, the record shows that the appellant was represented by a Veteran's Service Organization and its counsel throughout the adjudication of the claim. Overton v. Nicholson, 20 Vet. App. 427 (2006). Thus, based on the record as a whole, the Board finds that a reasonable person would have understood from the information that VA provided to the appellant what was necessary to substantiate the claim for an increased rating on an extraschedular basis, and as such, that he had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication was not affected. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, to include private treatment records, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has afforded the Veteran appropriate examinations to determine the severity of his disability and its impact on functioning, and the issue of whether the Veteran was entitled to an extraschedular rating for his lumbar spine disability was referred to the Director of C&P, as instructed in the Board's February 2010 remand. There was also substantial compliance with the Board's March 2009, July 2010 and March 2012 remands as a social and industrial survey was obtained, the case was referred to the Director of C&P, and the Veteran was scheduled for a videoconference hearing. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. ORDER An extraschedular rating under 38 C.F.R. §3.321(b)(1) for lumbar spondylolisthesis L5-S1 with spondylosis is denied. ____________________________________________ D. VAN WAMBEKE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs