Citation Nr: 1601509 Decision Date: 01/13/16 Archive Date: 01/21/16 DOCKET NO. 10-34 258 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to a rating higher than 40 percent on an extraschedular basis for degenerative arthritis of the lumbosacral spine. 2. Entitlement to service connection for rheumatoid arthritis, neck. 3. Entitlement to service connection for rheumatoid arthritis, left shoulder. 4. Entitlement to service connection for rheumatoid arthritis, right shoulder. 5. Entitlement to service connection for rheumatoid arthritis, right arm. 6. Entitlement to service connection for rheumatoid arthritis, left arm. 7. Entitlement to service connection for radiculopathy, right upper extremity. 8. Entitlement to service connection for radiculopathy, left upper extremity. 9. Entitlement to specially adapted housing. ATTORNEY FOR THE BOARD P. Childers, Counsel INTRODUCTION In correspondence dated in September 2015, the Veteran appears to be raising a claim for an increased evaluation for his back disability. Since the Board's June 2013 decision as to the propriety of the assigned schedular rating is final, and the only remaining issue from that appeal was to consider an extra-schedular evaluation, this September 2015 lay statement is construed as initiating a new claim for an increased rating. As it has not been adjudicated by the Agency of Original Jurisdiction (AOJ) the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from June 1976 to December 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in April 2009 and February 2015 by a Department of Veterans Affairs (VA) Regional Office (RO). The 2009 rating decision denied a rating higher than 40 percent for degenerative arthritis of the lumbar spine. The 2015 rating decision denied, in pertinent part, the issues of service connection for rheumatoid arthritis of the neck, bilateral shoulders, and bilateral arms; bilateral upper extremity radiculopathy; and entitlement to specially adapted housing. In February 2013, the Board considered the issues of entitlement to a disability rating higher than 40 percent for a lumbar spine disability and entitlement to an extension of a temporary total rating. The Board denied the latter claim, but remanded the former for further development. The case returned to the Board in June 2013. Based on the development, the Board considered the issue of entitlement to an increased rating for a back disability, as well as the issues of entitlement to a separate rating for bowel impairment and entitlement to a TDIU. The Board denied the increased rating claim, but remanded the other two for further development. In July 2013 the Veteran appealed the denial of his increased rating to the Court of Appeals for Veterans' Claims (Court). In June 2014, the Court issued a decision that vacated the Board's June 2013 decision with respect to the extraschedular consideration. The schedular aspect of the Board's decision was not argued, so the Board's June 2013 denial of a schedular rating higher than 40 percent for degenerative arthritis of the lumbosacral spine is final. In a rating decision dated in March 2014, the Appeals Management Center granted a separate rating for bowel impairment; so that issue is no longer before the Board. In November 2014 the Board remanded the issues of entitlement to an increased rating for a low back disability on an extraschedular basis, and entitlement to TDIU, for further development. In a rating decision dated in February 2015, the RO denied, in pertinent part, the issues of service connection for rheumatoid arthritis of the neck, bilateral shoulders, and bilateral arms; bilateral upper extremity radiculopathy, and entitlement to specially adapted housing. The Veteran has perfected an appeal with regard to these issues. In a rating decision dated in September 2015, the RO granted entitlement to TDIU effective February 28, 2014. The benefit sought having been granted, that issue is no longer on appeal. The issues of service connection for rheumatoid arthritis of the neck, bilateral shoulders, bilateral arms, and bilateral upper extremity radiculopathy; and entitlement to specially adapted housing; are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDING OF FACT The Veteran's degenerative arthritis of the lumbosacral spine disability picture is contemplated by the rating schedule and the assigned rating criteria are adequate. CONCLUSION OF LAW The criteria for an extraschedular rating for degenerative arthritis of the lumbosacral spine are not met. 38 U.S.C.A. 1155; 38 C.F.R. § 3.321(b)(1). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify the Veteran of the information and evidence necessary to substantiate the claims submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The notice requirements were accomplished in a letter dated in November 2008. Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006). As for VA's duty to assist, all relevant facts have been properly developed, and all evidence necessary for equitable resolution of the appeal for an extraschedular rating has been obtained. The Veteran's service, VA, and private treatment records have been obtained. The Veteran has also been afforded multiple VA examinations regarding his service-connected lumbosacral spine disability. The Board has reviewed the examination reports and finds that they are adequate because the examiners reviewed the claims file and discussed the Veteran's pertinent medical history; conducted appropriate examinations of the Veteran and considered the Veteran's subjective complaints; and reported all findings in detail. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding that an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). In addition, in November 2014 the Board remanded the matter for referral to the Director of Compensation and Pension for consideration as to whether an extraschedular rating was warranted, and in August 2015 the Director of Compensation and Pension responded, concluding the facts did not render application of the regular rating criteria as impractical. No further action to ensure compliance with the Board's November 2014 remand directives is required. Stegall v. West, 11 Vet. App. 268 (1998). In sum, the Veteran was provided with a meaningful opportunity to participate in the claims process and he has done so. Therefore, the Board concludes that all reasonable efforts to substantiate the issue resolved in this decision have been taken, and no further assistance to develop evidence is required. II. Merits In June 2013 the Board denied a claim for a schedular rating higher than 40 percent for degenerative arthritis of the lumbosacral spine; and that decision is final. The remaining issue is whether an extraschedular rating is warranted. See Court of Appeals for Veterans' Claims Memorandum Decision dated June 18, 2014. Evidence On VA examination in December 2008, the Veteran stated that his back pain was getting worse. He stated that he suffered from pain all the time, which was worse in the morning and at night. The examiner observed that the Veteran walked with a steady gait without the use of aids and squatted with minimal difficulty. He had no postural abnormalities or fixed deformities. He had some mild paraspinal tenderness and was somewhat guarded in movement. Range of motion testing found flexion to 50 degrees and extension to 15 degrees. Left and right lateral flexions were to 15 degrees. Left and right lateral rotations were to 15 degrees. Each movement was described as moderately limited due to pain. Repetitive motion did not result in loss of range of motion, but did result in increased guarding, weakness, grimacing, and incoordination. In his March 2009 notice of disagreement, the Veteran stated that contrary to the report of the VA examination he could not squat or walk with a steady gait. In June 2009, the Veteran stated that he was seeing a chiropractor, and that he used a cane to walk. In July 2009, he stated that he complained of severe leg pain; and reported that he was attending physical therapy. He stated that he walked with a cane and that he took short breaks when walking. In September 2009, he complained of suffering from severe back pain. Private medical records from Dr. T.R.W. in July 2009 advise of severe spinal stenosis and degenerative disc disease of several discs. Dr. T.R.W. reported that the Veteran could not stand unsupported for more than 10 minutes, and that the Veteran walked with a cane. Dr. T.R.W. added that the Veteran's range of motion was limited by 25 percent because of lower back pain. On VA examination in July 2010, the Veteran walked with a stooped posture. His gait was antalgic gait and he used a cane. Range of motion testing found forward flexion from 10 to 40 degrees; extension from 10 to 20 degrees; left lateral flexion from 10 to 20 degrees; right lateral flexion from 10 to 20 degrees; left lateral rotation from 0 to 10 degrees; and right lateral rotation from 0 to 10 degrees. There was objective evidence of pain with motion. Repetitive motion resulted in increased pain and loss of range of motion. With repetitive motion, flexion was from 10 to 30 degrees, extension was from 10 to 20 degrees, left lateral flexion was from 10 to 20 degrees, right lateral flexion was from 10 to 20 degrees, left lateral rotation was from 0 to 10 degrees, and right lateral rotation was from 0 to 10 degrees. In his July 2010 substantive appeal, the Veteran stated that he suffered from severe back pain without relief. Private medical records show that the Veteran had a lumbar laminectomy in August 2010. Private treatment records dating from October 2010 show that the Veteran's back pain was stable. The Veteran stated that he walked for exercise. The Veteran had full active range of motion with flexion but limited range of motion with extension. In January 2011 the Veteran again complained of intermittent, mild lower back pain. The Veteran had limited extension of 10 degrees with mild pain in the lumbar region. In April 2011, the Veteran had mild pain and limited range of motion. He had pain with extension, and his gait was antalgic. On VA examination in May 2011, the Veteran reported that he had returned to work but still had persistent pain, with flare-ups weekly lasting from 1 to 2 days. He stated that he could not sit or stand for more than 15 to 20 minutes without pain, and that he had difficulty stooping, bending, climbing, and standing. He also said that he had 3 episodes of thoracolumbar incapacitation and that he used a cane and walker. The examiner described the Veteran's posture as being in flexed position, and noted that the Veteran had an antalgic gait. The Veteran had lumbar flattening, but not ankylosis. The Veteran also suffered from spasms, guarding, pain and tenderness. The Veteran reported losing 25 weeks from work as a result of illness, surgery, and doctors' appointments. Range of motion testing found flexion from 11 to 67 degrees; extension from 11 to 18 degrees, left lateral flexion was from 0 to 24 degrees, right lateral flexion was from 0 to 21 degrees; left lateral rotation from 0 to 10 degrees; and right lateral rotation was from 0 to 10 degrees. There was objective evidence of pain with active motion. Repetitive motion flexion was from 11 to 52 degrees, extension was from -11 to 11 degrees, left lateral flexion was from 0 to 21 degrees, right lateral flexion was from 0 to 18 degrees, left lateral rotation was from 0 to 10 degrees, and right lateral rotation of 0 to 10 degrees. In correspondence dated in December 2011, the Veteran's wife stated that the Veteran's back was worse, and a coworker stated that the Veteran was in a lot of pain during and after work. The co-worked stated that it was hard for the Veteran to perform his tasks, and that he left work early many times. A second coworker stated that the Veteran was consistently in pain and that his performance had deteriorated. On VA examination in March 2013, the Veteran stated that he had at least 6 weeks of incapacitating episodes over the previous 12 months and 96 days of incapacitation. He added that he used to miss work until he recently became unemployed. Range of motion testing found flexion to 35 degrees with pain at 0. Extension was to 10 degrees with pain beginning at 0. Left and right lateral flexion was to 5 degrees with pain beginning at 0. Left lateral rotation was to 15 degrees and right lateral rotation was to 10 degrees with pain beginning at 0. The Veteran was not able to perform repetitive use testing. Functional loss was described as less movement than normal, weakened movement, incoordination, pain, instability, disturbance of locomotion, and interference with sitting, standing, or weightbearing. In an administrative decision dated in August 2015, VA's Director of Compensation and Pension averred that the medical evidence does not support an increased evaluation on a schedular or extraschedular basis for the arthritis of the lumbar spine for any time period; and that the current evidence shows that the lumbar spine warrants no higher than a 20 percent evaluation. According to the Director, "the evidentiary record does not demonstrate that the symptomatology consistently associated with the service-connected lumbar spine arthritis is not wholly contemplated by the criteria utilized to assign the current evaluation." VA medical records dating from 2010 do not show that the Veteran was prescribed bed rest by a physician to treat his service-connected back disability. Extraschedular Rating Analysis Under the Rating Schedule, degenerative arthritis of the lumbosacral spine is rated under either the General Rating Formula for Diseases and Injuries of the Spine, or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The criteria for rating a disability of the spine are for application with or without symptoms such as pain and whether or not it radiates, or whether there is stiffness or aching in the area of the spine affected. Under Diagnostic Code 5242, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, where the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, where there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a, Diagnostic Code 5242. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, where the combined range of motion of the thoracolumbar spine is less than 120 degrees; or, where there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine; and a 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Id. The highest rating of 100 percent is assigned where there is unfavorable ankylosis of the entire spine. Id. For rating purposes, normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are from 0 to 30 degrees, and left and right lateral rotation are from 0 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 thoracolumbar spine is to 240 degrees. Under the Formula for Rating Intervertebral Disc Syndrome, a 20 percent disability rating is awarded for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and the highest rating of 60 percent is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. An "incapacitating episode" is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). Extraschedular ratings are assigned in cases where an exceptional or unusual disability picture is presented that renders application of regular rating schedular standards impractical, due to factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Thun v. Peake, 22 Vet. App. 111, 115 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that disability picture are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). If the rating criteria reasonably describes the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. However, if the schedular criteria do not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). Id. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. For context, it should be noted that several distinct secondary manifestations of the Veteran's lumbar spine degenerative arthritis have been separately evaluated, and are not the subject of this appeal. Notably, the Veteran's secondary urinary dysfunction is assigned a 60 percent rating; his bowel impairment is assigned a 30 percent rating; left lower extremity radiculopathy is assigned a 40 percent rating; and his right lower extremity radiculopathy is assigned a 20 percent evaluation. He likewise, has been awarded a total disability rating based on individual unemployability due to his service connected disabilities, effective from February 2014. In its memorandum decision, the Court vacated the Board's June 2013 decision because the Board failed to provide adequate reasons and bases for its determination that referral for extra schedular consideration was not warranted. After the Board received the case from the Court, rather than provide an explanation for that determination, the Board simply referred the case to the Director of Compensation Service for extraschedular consideration. In an August 2015 Administrative Review, the Director concluded an extraschedular evaluation for the Veteran's lumbar spine arthritis was not warranted. In reaching this conclusion, the Director noted the Veteran's treatment history, his reported symptoms, his employment history, and the findings on examination. The Board likewise does not consider an increased, extraschedular evaluation is warranted. The above noted schedular criteria at Diagnostic Code 5242 and 5243 reasonably reflects the Veteran's lumbosacral spine disability picture (reduced range of motion of the lumbar spine and use of assistive devices for ambulation) and symptomatology (pain; stiffness; antalgic gait; inability to sit, stand and/or walk for prolonged periods, and incapacitating episodes), and provides higher ratings for additional or more severe symptoms. Indeed, for all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Thus, the schedular criteria for musculoskeletal disabilities contemplate a wide variety of manifestations of functional loss. Given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's disability picture. Moreover, the Veteran did not have frequent periods of hospitalization related to his lumbar spine disability during the appeal period. Rather, he had a single hospitalization for which he received a temporary total rating pursuant to 38 C.F.R. § 4.30. In addition, while the Veteran reported an increased absenteeism from work during the latter stage of the appeal period, this was only due in part to his service-connected lumbosacral spine disability, and there is no record of any adverse action taken by the his employer against him because of his back-related absenteeism. The Board accordingly finds that there is no unusual or exceptional disability pattern that would render application of the regular rating criteria impractical so an extraschedular rating for degenerative arthritis of the lumbosacral spine is not warranted. ORDER An extraschedular rating for service-connected degenerative arthritis of the lumbosacral spine is denied. REMAND With respect to the remaining issues on appeal, in his August 2015 substantive appeal (Form 9) the Veteran requested a Board Hearing at the local RO (a Travel Board hearing). In December 2015 he requested that the Board Hearing instead be done by videoconference. See December 15, 2015, record of telephone contact[Report of General Information]. See also November 12, 2015, record of telephone contact[Report of General Information]. As the Veteran's request for a Board Hearing was made prior to issuance of a Board decision, and as it has not been withdrawn, the case is remanded for scheduling of the requested hearing. Accordingly, the case is REMANDED for the following action: (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Schedule the Veteran for a videoconference Board Hearing and provide adequate notice to the Veteran of the scheduled hearing date in accordance with 38 C.F.R. § 19.76. Document the claims file accordingly. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs