Citation Nr: 1328248 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-45 101 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a disability rating in excess of 20 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. J. Wells-Green, Counsel INTRODUCTION Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. The Veteran served on active duty from September 1983 to May 1992. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied service connection for neck and right leg pain, and for a disability rating in excess of 20 percent for a low back disability. In August 2011, the Veteran testified at a Board hearing in Washington D.C., before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with his claim folder. During the August 2011 hearing, the Veteran withdrew his claim for service connection for neck pain. At the time of his August 2011 hearing, the Veteran clarified that he was claiming his right leg radiculopathy as a symptom of his service-connected low back disability and the issue was recharacterized as entitlement to a separate compensable disability rating for radiculopathy of the right lower extremity. In December 2011 and October 2012, the Board remanded the case for further development. A March 2013 rating decision awarded a separate 10 percent disability rating for radiculopathy of the right lower extremity, effective January 18, 2012. In correspondence received in July 2013, the Veteran's representative indicated that the Veteran is satisfied with the rating for his right lower extremity radiculopathy. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Given VA's failure to comply with the Board's December 2011 and October 2012 remand directives, the claim must again be remanded. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The December 2011 Board remand directed that the Veteran be provided another VA examination to assess the severity of his low back disability. The VA examiner was specifically instructed to conduct range of motion studies in the thoracolumbar spine, including after repetitive movement accounting for any limitations due to pain, weakness, fatigability, or incoordination. Although the January 2012 VA examiner noted the Veteran's thoracolumbar flexion was to 90 degrees and extension to 20 degrees initially and after repetitive use testing, he further found that the Veteran had functional loss or impairment and/or additional limitation of range of motion after repetitive use identified as less movement than normal and interference with sitting, standing and/or weight-bearing. He did not, however, provide an estimate of the Veteran's functional impairment in additional limitation of range of motion, as necessary to adequately assess the current severity of his disability. Although the January 2012 VA examination report notes that the Veteran did not have a back brace, a subsequent May 2012 VA treatment record shows that he was issued a lumbar support, suggesting the possibility that his low back disability may have worsened since the January 2012 VA examination. The October 2012 Board remand noted the Veteran's history of missing as much as 50 days of work a year due to his lumbar spine disability and directed VA to consider whether an extraschedular evaluation was warranted. Thun v. Peake, 22 Vet. App. 111 (2008). Generally, the Rating Schedule will apply unless there are exceptional or unusual circumstances. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, and there is an exceptional disability picture, including such factors as marked interference with employment and frequent periods of hospitalization, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether justice requires assignment of an extraschedular rating. The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. Only after the VA Chief Benefits Director or the Director of VA's Compensation and Pension Service has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claim. The Veteran submitted Certifications of Health Care Provider for Employee's Serious Health Condition (Family and Medical Leave Act) dated in December 2009, June 2010, January 2011 and December 2011, all signed by the same private physician. All the certifications note that the Veteran's lumbar spine injury required medication and bed rest during flare-ups and that the estimated frequency of the flare-ups were from 3 to 4 times a month with the duration of related incapacity estimated as being from 2 hours to 3 days. The Veteran's U.S. Postal Service leave records for 2009, 2010 and 2011, show the Veteran frequently took sick leave or leave without pay. Moreover, during his August 2011 hearing, he testified that he lost approximately 7 to 8 days of work a month due to his back disability. An August 2011 letter from the Veteran's treating VA chiropractor, while noting an inaccurate history of the Veteran's in-service injury does, after reviewing his history and his description of his work at the postal service, opine that the Veteran could have lost 50 or more days of work due to his military related spinal injury. Likewise, the January 2012 VA examiner noted the Veteran's history of having missed approximately 50 days of work in the past year due to his lumbar spine disability. The June 2013 Supplemental Statement of the Case indicates that the evidence does not show that the Veteran's lumbar spine disability is so exceptional or unusual to warrant an extra-schedular evaluation. However, in light of the Veteran's contentions and the evidence of record of possible marked interference with employment, the application of the regular scheduler criteria may be impracticable in the case. The case must be submitted to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service, for consideration of an assignment of an extraschedular evaluation. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA spine examination by an appropriate medical professional. The entire claim file (i.e., the paper claim file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records contained in the Virtual VA file that are not available on CAPRI or AMIE must be printed and associated with the paper claim file so they can be available to the examiner for review. The examiner must identify all symptoms attributable to the Veteran's service-connected lumbar spine disability and report the range of motion measurements for the lumbar spine in degrees. Any pain, weakened movement, excess fatigability or incoordination on movement must be noted, and whether there is likely to be additional range of motion loss due to any of the following must be addressed: (1) pain on use, including during flare-ups; (2) weakened movement; (3) excess fatigability; or (4) incoordination. The examiner must indicate whether, and, if so, to what extent, the Veteran experiences likely additional functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use of the lumbar spine; to the extent possible, the examiner must express such functional loss in terms of additional degrees of limited motion. The Veteran is hereby advised that failure to report for any scheduled VA examination without good cause shown may have adverse effects on his claim. 2. Thereafter, refer the claim for a disability rating in excess of 20 percent for a lumbar spine disability, to the VA Chief Benefits Director or the Director of the VA Compensation and Pension Service, for consideration of assignment of an extraschedular evaluation. 3. Then, readjudicate the appeal. If the benefit sought remains denied, issue a Supplemental Statement of the Case and return the case to the Board. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).