Citation Nr: 1604996 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 09-27 853 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an increased rating for bulging ligaments of annulus L5 and S1 vertebra, facet arthropathy between L5 and S1, and broad base ligamentum and foramina narrowing on the right between L5 and S1 ("lumbar spine disability"), rated initially as 10 percent disabling, and as 40 percent disabling from June 8, 2012. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1971 to May 1973 and from October 2004 to November 2005. This matter come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama that granted service connection for the lumbar spine disability, assigning a 10 percent rating effective August 27, 2008. The Veteran also initially appealed issues of service connection for bilateral hearing loss, jock itch, a right hip condition, and a sinus condition, and an issue of an initial compensable rating for hypertension. A Statement of the Case was issued in September 2012; however, the Veteran did not perfect appeals of these issues by filing a substantive appeal (VA Form 9). In September 2012, during the pendency of the appeal, the RO increased the rating for the lumbar spine disability to 40 percent, effective June 8, 2012. This decision constitutes a partial grant of the benefits sought on appeal. The issue therefore remains on appeal and is for consideration by the Board. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). In January 2015, the Board denied an initial evaluation in excess of 10 percent prior to June 8, 2012, and in excess of 40 percent thereafter for the lumbar spine disability. The Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (Court), and the parties filed a Joint Motion for Partial Remand (JMPR) requesting that the Board decision be vacated and remanded with respect to the lumbar spine disability. In a December 2015 Order, the Court granted the parties' motion, vacating and remanding the matter to the Board for compliance with instructions in the JMPR. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required. REMAND As noted above, the Court vacated a January 2015 Board decision that, in relevant part, declined to refer the claim for an increased rating for the lumbar spine disability, rated initially as 10 percent disabling and as 40 percent disabling from June 8, 2012, to the Director of VA's Compensation Service for consideration of extraschedular entitlement. In the JMPR, the parties agreed that the Board did not provide an adequate discussion of some potentially relevant evidence in its determination that the Veteran was not entitled to referral for extraschedular consideration at any point of the appeal. Specifically, the Board did not adequately discuss the evidence of functional loss during flare-ups for the period of appeal prior to June 8, 2012, and did not adequately discuss the Veteran's self-reports of six weeks of incapacitating episodes in the past 12 months due to intervertebral disc syndrome (IVDS). Flare-ups and incapacitating episodes that are not accompanied by physician-prescribed bed rest are, potentially, indicative of a lumbar spine disability picture that is beyond what is considered by the schedular criteria (which focuses on pain symptoms, limitation of range of motion, physician-prescribed bed rest, etc.). The Board cannot assign an extraschedular rating in the first instance; rather, a remand for referral to the Director of Compensation is necessary. 38 C.F.R. § 3.321(b)(1) (2015). Thus, the claim should be referred to the Director for consideration of an extraschedular rating. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009); see Anderson v. Shinseki, 22 Vet.App. 423, 427 (2009) (outlining the "elements that must be established before an extraschedular rating can be awarded"); 38 C.F.R. § 3.321(b)(1). Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Director of VA's Compensation Service for consideration of extraschedular ratings. The Director should determine if the Veteran's service-connected lumbar spine disability, rated initially as 10 percent disabling and as 40 percent disabling from June 8, 2012, warrants the assignment of an extraschedular rating at any point during the period of appeal, to include as due to flare-ups (for the period of appeal prior to June 8, 2012), and/or self-reports of six weeks of incapacitating episodes that were not accompanied by physician-prescribed bed rest (for the period of appeal from June 8, 2012). 2. Following the referral to the Director and his/her response, re-adjudicate the claim. Should an extraschedular rating be denied, issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2014). _________________________________________________ K. PARAKKAL 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).