Citation Nr: 1604243 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 12-24 250A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an extra-schedular rating for service-connected spinal stenosis, status post bilateral laminectomy with microdiskectomy and scar, lumbar spine. 2. Entitlement to a total rating based on individual unemployability (TDIU), prior to March 11, 2013. REPRESENTATION Veteran represented by: Daniel G. Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran served on active duty from February 1972 to February 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2009 rating decision that granted service connection for degenerative disc disease of the lumbosacral spine. An initial 10 percent rating was assigned, effective September 8, 2003. In a February 2013 rating decision, the Los Angeles, California, Regional Office (RO) awarded a temporary total rating from August 9, 2010, to November 30, 2010, for a period of convalescence. As a total rating was in effect for this period, entitlement to a higher rating during this period is moot. In a March 2013 rating decision, the RO increased the evaluation for the back disability to 20 percent, effective March 11, 2013. The RO also recharacterized the disability as spinal stenosis, status post bilateral laminectomy with microdiskectomy and scar, lumbar spine. The RO also awarded a 20 percent rating for radiculopathy of the left lower extremity, effective September 8, 2003. In December 2014, the Board granted the 20 percent schedular evaluation for service-connected spinal stenosis, status post bilateral laminectomy with microdiskectomy and scar of the lumbar spine for the entire appeal, and remanded the appeal for referral for extra-schedular consideration with respect to a TDIU and a higher rating claim for service-connected spinal stenosis, status post bilateral laminectomy with microdiskectomy and scar, lumbar spine on an extraschedular basis. In a December 2015 rating decision, a TDIU was granted on an extraschedular basis, effective March 11, 2013. As the award did not satisfy the appeal in full, the issue of entitlement to a TDIU, prior to March 11, 2013, remains on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the issue has been recharacterized as reflected on the title page. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND In December 2014, the Board referred the appeal to Compensation Service for extra-schedular consideration. The Board notes that in January 2014, VA's Compensation and Pension Service was renamed the "Compensation Service." See VA Compensation Service and Pension and Fiduciary Service Nomenclature Changes, 79 Fed. Reg. 2,099, 2,099 (Jan. 13, 2014). As such, the Board will hereinafter refer to the Director of VA's Compensation Service as the "Director." The Director's September 2015 opinion notes the following: The medical evidence of file is insufficient to warrant an increase in the Veteran's service-connected spinal stenosis both on a schedular and extra-schedular basis. The Veteran is currently and correctly in receipt of 20% disabling for his back condition and a 20% for his radiculopathy associated with his back condition. Therefore, consideration on an extra-schedular basis for his spinal stenosis (§3.321(b)(1)) is denied. However, due to the Veteran's combined evaluation of 40% disabling for both conditions, which are related to one another, and the medical evidence of file demonstrating that although on VA exam from 2011 the examiner opined that the Veteran's back condition at that time was less likely to impair both physical and sedentary work, another exam performed on March 18, 2014, provided that the Veteran's back disability impacts his ability to work and that would have difficulty bending, stooping, and twisting. Moreover, given the evidence that the Veteran's highest level of education is a high school degree, he worked for many years as a truck driver and would go as far as to not inform employers of his condition so that they would hire him, and the various surgeries endured, IU is granted on an extra-schedular basis (§4.16(b)) from the date that the medical evidence shows he was too disabled to work from: March 18, 2014. It was noted that although the Veteran's file was reviewed, the RO did not provide a recommended evaluation, per VA's Adjudication Procedure Manual M21-1, Part III, Subpart iv, Chapter 6.B.4.c. In a December 2015 rating decision, a TDIU was granted on an extra-schedular basis, effective March 11, 2013. The RO determination notes that the Director's opinion incorrectly referenced a VA examination report dated March 18, 2014, and that the March 11, 2013, effective date was noted to correspond with the correct date of the VA examination report, and the date entitlement arose. The Board notes, however, that the March 11, 2013, VA report of examination references "difficulty with heavy lifting, bending, stooping," whereas a VA examination report, dated March 3, 2014, refers to "difficulty doing repetitive bending, stooping and twisting," the language cited in the Director's opinion. Regardless, neither the Director nor the rating decision addresses the December 2007 VA physician's opinion to the effect that the Veteran was disabled and unable to maintain gainful employment due to his service-connected disability, assessed as severe lumbar spine degenerative and discogenic disease, with in particular a large central disc protrusion at L45, producing severe spinal stenosis on MRI in 2003, because prolonged sitting or weight-bearing would result in a marked worsening of the Veteran's constant and severe lower back pain and associated radiating pain and numbness to the left lower extremity, or the Social Security Administration (SSA) determination reflecting disability in August 2009. As such, the Board finds that the Director's opinion is not completely adequate for a determination. See Kuppamala v. McDonald, No. 14-2449 (U.S. Vet. App. 2015) (Director's decision must have reasons and bases so that the Board may dutifully review the decision in accordance with the evidence of record and the requirements of 38 C.F.R. § 3.321). Moreover, the December 2015 rating decision further reflects that service connection was granted for left lower extremity radiculopathy involving the femoral nerve associated with the service-connected back disability, and a 20 percent rating was assigned, effective March 11, 2013. From March 11, 2013, he has a combined disability rating of 50 percent. The Board finds that at this juncture, and in view of the newly service-connected radiculopathy of the left lower extremity involving the femoral nerve, the case should be referred back to the Director for an addendum opinion with respect to the collective impact of the Veteran's service-connected disabilities of spinal stenosis, status post bilateral laminectomy with microdiskectomy and scar of the lumbar spine; radiculopathy of the left lower extremity involving the sciatic nerve; and radiculopathy of the left lower extremity involving the femoral nerve, pursuant to 38 C.F.R. §3.321(b)(1), and in accordance with M21-1, Part III, Subpart iv, Chapter 6.B.4.c., as well with respect to the issue of entitlement to a TDIU on an extra-schedular basis, prior to March 11, 2013, with consideration of the December 2007 VA opinion, the SSA determination, and the newly service-connected radiculopathy of the left lower extremity involving the femoral nerve, in accordance with the provisions of 38 C.F.R. § 4.16(b). In addition, in December 2015, the Veteran's attorney indicated that a copy of the December 2015 rating decision had not been provided. As such, on remand, the RO should ensure that the Veteran and his attorney have received a copy of the December 2015 rating decision. Accordingly, the case is REMANDED for the following action: 1. Ensure that the Veteran and his representative have been furnished with a copy of the December 2015 rating decision. 2. Refer the claim of entitlement to a TDIU on an extra-schedular basis, prior to March 11, 2013, to the Director of Compensation Service for an addendum opinion with respect to the issue of whether the Veteran is entitled to a TDIU in accordance with the provisions of 38 C.F.R. § 4.16(b), prior to March 11, 2013. A full statement of all factors having a bearing on the issue should be provided, and should specifically address the December 2007 VA opinion to the effect that the Veteran was unemployable due to his back disability and associated neurologic impairment, and the SSA determination reflecting disability in August 2009. A rationale should accompany all opinions expressed. 3. Refer the claim of entitlement to an extra-schedular rating based on the collective impact of the Veteran's service-connected disabilities of spinal stenosis, status post bilateral laminectomy with microdiskectomy and scar of the lumbar spine; radiculopathy of the left lower extremity involving the sciatic nerve; and radiculopathy of the left lower extremity involving the femoral nerve pursuant to 38 C.F.R. §3.321(b)(1), to the Director of Compensation Service for an addendum opinion, and in accordance with M21-1, Part III, Subpart iv, Chapter 6.B.4.c. The opinion should specifically address the Veteran's associated symptoms. A rationale should accompany all opinions expressed. 4. Finally, readjudicate the appeal. If either of the benefits sought remain denied, issue a supplemental statement of the case and return the case to the Board. 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). _________________________________________________ M. HYLAND Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).