Citation Nr: 1337644 Decision Date: 11/18/13 Archive Date: 11/26/13 DOCKET NO. 09-07 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an increased disability rating greater than 20 percent for lumbar spine disc protrusion with radiculopathy on an extraschedular basis under 38 C.F.R. § 3.321(b) for the period prior to July 23, 2010. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Air Force from October 1993 to August 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of the case was subsequently transferred to the RO in Buffalo, New York. This case was previously before the Board in September 2011 for appellate review. In a September 2011 decision, the Board denied the Veteran an increased rating for his lumbar spine disability with radiculopathy in excess of 20 percent for the period prior to July 23, 2010, and an increased rating in excess of 40 percent for the period after July 23, 2010. The Veteran appealed the Board's decision to deny an increased rating in excess of 20 percent for the period prior to July 23, 2010, to the United States Court of Appeals for Veterans Claims (Court). The Veteran did not contest the Board's denial of the increased rating in excess of 40 percent for the period after July 23, 2010. Thus, that issue is no longer on appeal. In a May 2012 Order, the Court vacated and remanded the case for proceedings consistent with a Joint Motion for Partial Remand (Joint Motion) on the issue of an increased rating in excess of 20 percent for the lumbar spine for the period prior to July 23, 2010. Specifically, the Joint Motion directed the Board to seek clarification from previous VA and private medical examiners to describe at which point the Veteran's range of lumbar spine motion was limited by pain in accordance with 38 C.F.R. §§ 4.40, 4.45; Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). In addition, the Joint Motion directed the Board to provide adequate reasons and bases for its determination of whether a referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is warranted for the period prior to July 23, 2010. The Board subsequently remanded this case in December 2012 and June 2013 for further development, in accordance with the Joint Motion's directives. The case has since been returned to the Board for appellate review. In the June 2013 Board decision, the Board denied the Veteran an increased rating in excess of 20 percent for a lumbar spine disability with radiculopathy on a schedular basis for the period prior to July 23, 2010. Thus, the increased rating issue on a schedular basis is no longer on appeal before the Board, but the extraschedular increased rating issue remains in appellate status. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT From March 28, 2008, to July 23, 2010, the assigned 20 percent schedular evaluation for the Veteran's lumbar spine with radiculopathy disability does not contemplate the Veteran's level of disability and all of his symptomatology, and his disability lumbar spine disability results in marked interference with employment. This presents an exceptional or unusual disability picture so as to render impractical the application of the regular rating standards for this time period. CONCLUSION OF LAW From March 28, 2008, to July 23, 2010, the criteria are met for an increased disability rating of 40 percent on an extraschedular basis for the lumbar spine with radiculopathy disability. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.321(b), 4.1-4.7, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist With regard to the issue of an increased rating for a lumbar spine disability prior to July 23, 2010, a review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify was accomplished by way of VCAA letters from the RO to the Veteran dated in April 2008, June 2008, December 2008, and January 2013. In any event, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of this particular increased rating issue. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). As pertinent to this point, the Board considers the assignment of a 40 percent rating on an extraschedular basis for the lumbar spine, effective from March 28, 2008, to be a full grant of benefits sought on this issue. In this regard, a Veteran is presumed to be seeking the highest possible rating, unless he expressly indicates otherwise. AB v. Brown, 6 Vet. App. 35, 39 (1993). Here, the Veteran has expressly indicated that he only desires a 40 percent rating for the lumbar spine, effective back to May 2008. See September 2010 Veteran's statement. His representative has added that the Veteran agrees with the 40 percent rating assigned, but that he wants it retroactive to May 2008. See May 2011 Informal Hearing Presentation (IHP). In the present decision, the Board is granting the 40 percent rating retroactive to March 28, 2008, which is an even earlier date than the Veteran requested. Thus, no further discussion of the VCAA is required, as this decision is considered a full grant of the benefits sought on appeal. Extraschedular Consideration under 38 C.F.R. § 3.321(b)(1) The Veteran filed an increased rating claim for his service-connected lumbar spine disability in March 2008. The Veteran's entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that, in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times when his lumbar spine disability has been more severe than at others, and rate it accordingly. The Veteran's lumbar spine disc protrusion with radiculopathy is rated under Diagnostic Code 5243, intervertebral disc syndrome. 38 C.F.R. § 4.71a (2013). The Veteran's lumbar spine disability has already been staged by the RO. From March 2, 2004, to July 23, 2010, the lumbar spine with radiculopathy disability is rated as 20 percent disabling. From July 23, 2010, to the present, the disability is rated as 40 percent disabling. The criteria for spine disorders were amended in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345-54,349 (Aug. 22, 2002); 68 Fed. Reg. 51,454 (Aug. 27, 2003). In this case, the Veteran's increased rating claim was received by the RO in March 2008, which was subsequent to the final amendments. Thus, only the most current version of the rating criteria (i.e., the September 2003 amendments) is for application. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. The September 2003 amendments indicate that intervertebral disc syndrome, (preoperatively or postoperatively) can be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine 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: A 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent of more of height. A 20 percent rating is assigned for 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, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent evaluation is assigned for forward flexion of the cervical spine to 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating requires evidence of unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation will be assigned with evidence of unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating requires evidence of unfavorable ankylosis of the entire spine. 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 thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is 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 (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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (in effect after September 26, 2003). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is as follows: A 10 percent rating requires evidence of incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months. A 20 percent rating requires evidence of incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating requires evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating requires evidence of incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1: For purposes of evaluations under Diagnostic Code 5243, an incapacitating episode is 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. Note 2: If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment will be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (in effect after September 26, 2003). When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). With any form of arthritis, painful motion is an important factor of disability. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. 38 C.F.R. § 4.59. In the September 2011 Board decision, the Board denied the Veteran an increased rating in excess of 40 percent for a lumbar spine disability with radiculopathy for the period after July 23, 2010. This issue was not appealed to the Court. Thus, this issue is no longer on appeal before the Board. In the June 2013 Board decision, the Board denied the Veteran an increased rating in excess of 20 percent for a lumbar spine disability with radiculopathy on a schedular basis only for the period prior to July 23, 2010. This issue was not appealed to the Court. Thus, this issue is not currently on appeal before the Board. However, in the June 2013 Board decision, the Board found that the evidence of record reasonably raised the issue of whether an extraschedular evaluation for the Veteran's lumbar spine with radiculopathy disability was warranted under 38 C.F.R. § 3.321(b)(1) for the period prior to July 23, 2010. As such, the Board instructed the RO to refer the increased rating claim to the Director of Compensation and Pension Service for an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1). The RO complied with this request, and the Director of Compensation and Pension issued a July 2013 letter opining that the Veteran was not entitled to an extraschedular rating above 20 percent under 38 C.F.R. § 3.321(b)(1) for his lumbar spine with radiculopathy disability prior to July 23, 2010. Therefore, the issue of an extraschedular rating for the lumbar spine under 38 C.F.R. § 3.321(b) prior to July 23, 2010, is no longer in the first instance. It follows that the Board now has jurisdiction to adjudicate the extraschedular issue on the merits. See Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996). Under 38 C.F.R. § 3.321(b)(1), 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 on the basis of the criteria set forth in this paragraph 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. As the Court explained in Thun v. Peake, 22 Vet. App. 111, 115-116 (2008), a "determination of whether a claimant is entitled to an extra-schedular rating under § 3.321(b)(1) is a three-step inquiry." If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extra-schedular rating is warranted. Id. See also 38 C.F.R. § 3.321(b)(1). 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. See again Floyd, 9 Vet. App. at 95. The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157, 162 (1994). See also Thun, 22 Vet. App. at 117. An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. In this case, the Veteran is still gainfully employed full-time as an administrative supervisor for the police department, such that consideration of a TDIU extraschedular rating under 38 C.F.R. § 4.16(b) is not warranted in any way. Only the § 3.321(b)(1) issue is for consideration here. In the present case, the Veteran has reported lumbar spine symptoms of pain, limited motion, stiffness in the morning, difficulty with prolonged sitting and standing, limitation in bending, lifting, and twisting, pain that interfered with his sleep, an inability to play sports, and limitations in playing with his children. The regulations expressly consider limitation of motion, the effect of incapacitating episodes, and associated neurological symptoms. The regulations also expressly contemplate interference with sitting, standing, and weight-bearing. 38 C.F.R. § 4.45(f). Additionally, applicable caselaw mandates the Board consider the overall functional effect of symptoms such as pain, limited motion, fatigability, weakness, incoordination, and other symptoms. See Johnson v. Brown, 9 Vet. App. 7, 10 (1996); DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). However, as to the initial Thun step, when comparing the actual level of severity and the symptomatology of the Veteran's lumbar spine disability with the established criteria provided in the rating schedule for this disability, some of the manifestations of his service-connected lumbar spine with radiculopathy disability are not listed by the rating criteria, for the period prior to July 23, 2010. Thun, 22 Vet. App. at 115-116. That is, the rating criteria under 38 C.F.R. § 4.71a, Diagnostic Code 5243, do not cover all his symptomatology for his lumbar spine with radiculopathy disability. Specifically, the Veteran has asserted that lumbar spine pain interfered with his sleep, which is a symptom not contemplated by the regulations or the caselaw. He reports rarely experiencing a night where he is not woken up by the pain. He has to constantly sleep on his side. Additionally, the Veteran has specifically argued that his ability to flex to certain degrees had nothing to do with the amount of pain he had while doing the motion. He has stated that, at his VA examinations, he continued through range of motion, despite the pain, only because he has an ability to tolerate pain to a greater extent than other people. He has also described an extensive morning routine to get going, which involves stretching, a hot shower, a heat pad, and medication. Several times a week, he requires physical therapy and epidural injections. He also described frequent use of traction and a TENS machine. See March 2008 claim; October 2008 NOD; April 2008 and August 2008 Veteran's statements; April 2008 spouse statement; October 2013 IHP. These symptoms suggest that the schedular criteria in question, which focus on the range of flexion, may not be adequate to contemplate the Veteran's overall symptomatology. Therefore, initially, the Board has acknowledged that some of the manifestations of his lumbar spine with radiculopathy disability are not listed by the rating criteria, such that the case was already referred to the Director of Compensation and Pension Service for an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1). Thun, 22 Vet. App. at 115-116. As to the second Thun step, the Board finds that the Veteran's lumbar spine with radiculopathy disability presents an exceptional or unusual disability picture because it is productive of "marked interference" with employment, rendering impractical the application of the regular schedular standards of only a 20 percent schedular rating for the time period prior to July 23, 2010. See 38 C.F.R. § 3.321(b)(1). Again, an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran's disabilities. Under Thun, "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." 22 Vet. App. at 117. That is, requiring that there be evidence of interference with "obtaining or retaining" employment would exact a higher standard than is required for a finding of "marked interference with employment" under § 3.321(b)(1). Id. Indeed, difficulty in obtaining or retaining employment is an element considered for establishing a TDIU under 38 C.F.R. § 4.16. Id. To require the same showing to establish one factor for review in determining entitlement to extraschedular consideration would create an impermissible overlap between these two concepts and implies that they are sui generis in name only. Id. However, time missed from work or lost income because of a service-connected disability might be relevant to the issue of whether "marked interference with employment" exists under § 3.321(b)(1). Id. The following evidence of record supports "marked interference with employment" due to the lumbar spine prior to July 23, 2010. At the December 2009 VA examination, the Veteran reported missing 30 days of work in the last year due to his lumbar spine. In an April 2010 statement, the Veteran also listed 33 specific days he missed in the last year due to his lumbar spine. Moreover, in his March 2008 claim, the Veteran stated that he is not eligible to participate in several other work details due to the physical activity they involve. Instead, he has to remain at a desk job. In fact, in an April 2008 statement, his spouse indicated the Veteran was taken off a list for a specialized unit due to his lumbar spine. An April 2008 letter from the local police department confirmed that, due to the Veteran's lumbar spine injury with limited mobility, the Veteran is unable to perform physically demanding tasks to fulfill the requirements of the Emergency Response Team (ERT); therefore, his application was rejected. A January 2009 letter from the local police department also verified that the Veteran was not able to adequately perform overtime detail from April 2008 to October 2008. The Veteran added in a January 2009 statement that the inability to perform overtime work due to his lumbar spine caused financial constraints. A December 2008 letter from the Veteran to his congresswoman further noted that he cannot wear his gun and equipment belt on a 12 hour overtime detail due to his lumbar spine pain. Therefore, the above evidence demonstrates that the Veteran's ambitions and career as a policeman are limited to only sedentary police work. Even with sedentary work, he also missed a significant amount of time from his job each year due to lumbar spine problems. This constitutes "marked interference with employment" from his service-connected lumbar spine with radiculopathy disability prior to July 23, 2010. The Board acknowledges that the Director of Compensation and Pension issued a July 2013 letter opining that the Veteran was not entitled to an extraschedular rating above 20 percent under 38 C.F.R. § 3.321(b)(1) for his lumbar spine with radiculopathy disability prior to July 23, 2010. The Director found that, although the evidence of record revealed "some" interference with employment, "marked" interference with employment was not shown. However, in making this determination, the Director erroneously concluded the interference with employment the Veteran experienced was contemplated "by the rating schedule evaluation of 40 percent disabling." This statement was in error, as the issue presented to the Director was whether a 20 percent rating, not a 40 percent rating, was adequate to compensate for the Veteran's loss of working time and income prior to July 23, 2010. As discussed in detail above, the Board finds that a schedular 20 rating was not adequate in the present case. As such, the July 2013 extraschedular evaluation by the Director of Compensation and Pension is only entitled to limited probative value against the claim. Overall, it is outweighed by the other evidence of record. Moreover, the Board emphasizes that it is not bound by the Director of Compensation and Pension's findings on the extraschedular issue. Anderson, 22 Vet. App. at 427-28. All that is required is for the Director of Compensation and Pension to make the initial determination, which it has in July 2013. The Board is then free to make its own determination. In light of the above, the Board concludes that the Veteran's lumbar spine with radiculopathy disability warrants an increased 40 percent evaluation on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), effective back to the March 28, 2008, date of claim. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007), the Board has determined that there is no basis to "stage" the Veteran's 40 percent extraschedular rating for his service-connected lumbar spine disability. The 40 percent extraschedular rating granted in this decision should be effective from the date the Veteran's increased rating claim was received by the RO, which was March 28, 2008. In light of the Hart case, the Board has also considered whether the 40 percent extraschedular rating assigned here was factually ascertainable up to one year prior to the March 2008 increased rating claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In this regard, the April 2008 VA examiner noted that the Veteran had missed 12 days of work in the past year (thus stretching back to 2007), due to his lumbar spine disability. The Board concludes that 12 missed days of work in a one-year period does not support "marked interference with employment" for purposes of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). Rather, this evidence only establishes some limited interference with employment for that time period. ORDER Effective March 28, 2008, an increased 40 percent disability rating for a lumbar spine with radiculopathy disability on an extraschedular basis under 38 C.F.R. § 3.321(b) is granted, subject to the laws and regulations governing the payment of VA compensation. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs