Citation Nr: 1334391 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 06-39 176 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to a disability rating higher than 40 percent for residuals of a strain of the lumbar spine, including on an extraschedular basis under 38 C.F.R. § 3.321(b)(1) (2013). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran had active service from May 1984 to May 1988. This appeal comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied the Veteran's claim for a rating in excess of 40 percent for the service-connected residuals of an in-service strain of the lumbar spine. In support for his claim, the Veteran testified at a Decision Review officer (DRO) hearing at the RO in June 2007. A copy of the transcript from this hearing has been associated with the record. In his January 2006 notice of disagreement (NOD) and in October 2006 and June 2007 statements, the Veteran requested a videoconference hearing before a Veterans Law Judge at the RO. A videoconference hearing was scheduled for March 2008, and the Veteran was so notified in February 2008. However, the Veteran failed to report at his scheduled time and thus far has not offered an explanation for his absence. Accordingly, the Board will adjudicate the Veteran's appeal as if the hearing request had been withdrawn. 38 C.F.R. § 20.704(d) (2013). In August 2009, the Veteran's claims for a rating in excess of 40 percent and for TDIU due to the service-connected residuals of a strain of the lumbar spine were remanded for further development. Thereafter, in September 2011, the Board denied the claim for a disability rating in excess of 40 percent for residuals of a strain of the lumbar spine on a schedular basis but remanded the issue of entitlement to TDIU and entitlement to an increased rating based on extraschedular consideration pursuant to 38 C.F.R. § 4.16(b) and 38 C.F.R. § 3.321(b). Following the timely appeal of the Board's decision to the United States Court of Appeals for Veterans Claims (Court), a June 2012 Joint Motion for Remand vacated the Board's September 2011 decision as a result of deficiencies found to be contained therein, and remanded the entire case to the Board for further action consistent with the instructions set forth in the Joint Motion. The Board remanded the claims to the RO via the Appeals Management Center (AMC) in January 2013. They have been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The residuals of a strain of the lumbar spine do not cause the Veteran to experience any ankylosis; the Veteran does not exhibit incapacitating episodes having a total duration of at least six weeks during any twelve month period on appeal. 2. The residuals of a strain of the lumbar spine results in marked interference with employment and thus presents an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards. 3. The competent evidence of record indicates the Veteran's service-connected disability renders him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The disability picture presented by the Veteran's service-connected residuals of a strain of the lumbar spine warrants the assignment of 60 percent rating on an extra-schedular basis. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.321 (2013). 2. The criteria for a total disability evaluation based on individual unemployability due to service-connected disability (TDIU) have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and 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. Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case). See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In the instant case, the Veteran received notification via multiple letters following the initial decision in this claim. These notice letters, sent in November 2006, August 2009, August 2011, September 2011, December 2011 and February 2012, advised the Veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO or the AMC to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The claims were thereafter readjudicated in May 2013. While the Veteran was not provided adequate notice prior to the initial adjudication of the claim, following the provision of the required notice and the receipt of all pertinent evidence, the originating agency readjudicated the claim. There is no indication or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). Service treatment records are associated with claims file. All post-service treatment records and reports identified by the Veteran have also been obtained. Social Security Administration records have been obtained, including those related to the Veteran's claim for disability. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded multiple VA examinations addressing his service-connected lumbar spine disability. These examinations are adequate for the purposes of the instant appeal as they were based on consideration of the Veteran's pertinent medical history and described the current severity of the Veteran's disability. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board observes the instant case was remanded for additional development including obtaining an opinion from the Director of Compensation Service as to whether the Veteran is entitled to extraschedular consideration. The Director's response was dated in February 2012. Additionally, updated VA treatment records referenced in the January 2013 Board remand were obtained. Therefore, there has been substantial compliance with the Board remands, and adjudication of the instant case may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the Veteran in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). a. Increased Rating for Lumbar Strain-Schedular Consideration Lumbosacral spine disorders are to be evaluated under the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 through 5242 (2013). Intervertebral disc syndrome (IVDS) will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for IVDS based on incapacitating episodes contained in Diagnostic Code 5243 (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). The general rating formula for disease and injury of the spine, in pertinent part, is as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: Unfavorable ankylosis of the entire spine ............................100 Unfavorable ankylosis of the entire thoracolumbar spine......50 Under Diagnostic Code 5243, a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that require bed rest as prescribed by a physician and treatment by a physician. The record does not show, nor does the Veteran contend, that he has experienced either ankylosis of the thoracolumbar spine or incapacitating episodes of IVDS. VA examination reports dated throughout the pendency of this claim are uncontroverted as to these two facts. Thus, he does not meet the scheduler criteria for an increased rating. The preponderance of the evidence is against an increased rating on a scheduler basis. b. Increased Rating for Lumbar Strain-Extra Schedular Consideration According to the regulation, an extra-schedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). There is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. Thun v. Peake, 22 Vet App 111 (2008). First, the Board must first 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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, a veteran's disability picture requires the assignment of an extra-schedular rating. In this case, the Board has already referred to the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether this Veteran's disability picture requires the assignment of an extra-schedular rating. See September 2011 Board remand. As such, the Board has already determined that the first two inquiries are answered in the affirmative. In February 2012, the Director of Compensation and Pension Service denied entitlement to an extra-schedular rating for his lumbar spine disability, concluding that there was no unusual or exceptional disability pattern that rendered application of the regular rating criteria impractical pursuant to 38 C.F.R. § 3.321(b)(1). As such, the only question before the Board is whether an extra-schedular rating should be assigned. As noted above, the Board has previously determined there is evidence presenting such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected disability are inadequate, and that his disability picture exhibits other related factors such as those provided by the regulation as "governing norms." The Board must consider all of the pertinent medical evidence as well as the Veteran's individual circumstances in the determination of whether an extra-schedular rating is warranted. Significant to the issue of an extra-schedular evaluation, according to a February 2013 VA examination report, the VA examiner noted that the Veteran had potential work-related limitations including prolonged standing, walking, bending and lifting but he should be able to function at a sedentary work level. In an October 2011 VA examination report, the VA examiner noted that the Veteran had decreased range of motion due to pain caused by his back disability, and that he could no longer work as a certified nurse assistant (CNA) as he did six years ago. He was restricted from repetitive bending, heavy lifting and prolonged weight bearing. The Veteran's September 2009 claim for TDIU reflects that the Veteran has a history of working as a CNA but had to stop working at that job due to low back problems. He last worked in August 2005 in plant maintenance. He reported that he had a high school education plus a year of college. The Board finds the SSA disability claim records in conjunction with the 2011 and 2013 VA examination reports to be highly significant in this case. SSA records show that, based on a review of VA and private medical records, the Veteran was found disabled due to his degenerative disease low back disability. In a June 2008 decision, the SSA Administrative Law Judge (ALJ) found that the Veteran was restricted to lifting and carrying not more than 10 pounds, standing or walking for two hours, or sitting for 6 hours in an 8 hour work day. The ALJ concluded that these restrictions rendered the Veteran disabled inasmuch as he could not do his past work, and there were no jobs a person with his restrictions, education and age could perform. VA and private treatment records are replete with reference to complaints for back pain and show generally that the Veteran had marked limitation of lumbar motion with increased pain levels with all activity. As noted, the Veteran has been assigned the maximum 40 percent rating based on limitation of motion of the lumbar spine under the General Rating Formula. He has previously been denied an increased rating on a schedular basis because the General Rating Formula requires ankylosis of the lumbar spine or entire spine for a higher rating. 38 C.F.R. § 4.71a. Again, ankylosis has not been found in the instant case, and there are no incapacitating episodes. At this juncture, the Board points out that the JMR noted that the Veteran had not yet filed a claim for spinal stenosis or any other spinal degenerative disease. Regardless, because it is unclear from the record which symptoms are attributable to which low back disability, the Board will consider all of the symptomatology contained in the evidence. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the Veteran's favor and the symptoms in question attributed to the service-connected disability). In light of the clinical picture in this case as considered with the Veteran's prior work history and industrial impairment, i.e., his total disability picture, the Board agrees with the Veteran and finds that his lumbar strain disability presents an exceptional or unusual disability picture because it is productive of more than the interference with employment contemplated in his current 40 percent rating, thereby rendering impractical the application of the regular schedular standards. Based on a careful analysis of the lay and medical evidence, the Board concludes that the Veteran's lumbar spine disability warrants a 60 percent evaluation on an extra-schedular basis, bearing in mind the applicable diagnostic criteria outlined above. In reaching this conclusion, the Board has considered the Veteran's reported and objectively verified increased pain. Accordingly, for the reasons discussed above, a 60 percent rating is warranted on an extra-schedular basis. To that extent, the appeal is granted. See 38 C.F.R. § 3.321(b)(1) (2013). c. TDIU Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2013). In reaching such a determination, 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 law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). The Veteran's only service-connected disability is residuals of strain of the lumbar spine. As discussed immediately above, the Board has assigned an extra-schedular evaluation of 60 percent for this disability. Therefore, the Veteran is eligible for consideration for TDIU benefits on a schedular basis. Id. For reasons stated immediately below, the Board finds that the evidence of record demonstrates that the Veteran's service-connected disability renders him unable to secure and follow a substantially gainful occupation. Significantly, VA examination reports dated in August 2005, August 2007, September 2010, October 2011 and March 2013 collectively demonstrate the Veteran has had moderate to marked limitation of lumbar motions with increased pain levels with activity throughout the pendency of the claim period. VA examiners in 2011 and 2013 have opined that the Veteran was essentially capable of only sedentary activity with restrictions as to sitting and standing as noted above. The Board notes that the 2011 and 2013 VA examination reports do not indicate the Veteran is precluded from all employment, but rather notes the Veteran is capable of some limited sedentary employment with restrictions. The Board finds this is essentially consistent with the findings as to restrictions enumerated in the SSA decision. However, a TDIU rating is warranted where the Veteran's service-connected disability prevents the Veteran from following a substantially gainful occupation. Based on the 2011 and 2013 VA examination reports, in conjunction with the SSA opinion based on medical data, the Veteran's service-connected disability allows him to work significantly less than a typical workday in limited sedentary employment. Such employment is not, in the Board's view, equivalent to substantially gainful employment. As such, the Board concludes that an award of TDIU is warranted, under 38 C.F.R. § 4.16(a). The benefit sought on appeal is accordingly granted. ORDER An extra-schedular evaluation of 60 percent for residuals of a strain of the lumbar spine is granted, subject to the laws and regulations governing the payment of monetary benefits. A TDIU evaluation is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs