Citation Nr: 1625213 Decision Date: 06/22/16 Archive Date: 07/11/16 DOCKET NO. 04-38 885 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an initial rating in excess of 10 percent prior to July 24, 2006, and in excess of 20 percent thereafter, for degenerative disc disease of the thoracic spine on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Devon Rembert-Carroll, Associate Counsel INTRODUCTION The Veteran had active duty from June 1998 to October 2003. This case has a long procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The full procedural history of the case can be found in the Board's previous October 2014 decision and remand. Since the October 2014 Board decision, in an August 2015 decision, the Board denied the Veteran's claim for a higher rating on an extraschedular basis. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A May 2016 Joint Motion for Remand (JMR) vacated the decision and the case has been returned to the Board for action consistent with the JMR. This appeal was processed using the Veterans Benefits Management System. A review of the Veteran's Virtual VA claims file reveals documents that are either duplicative or irrelevant to the issue on appeal. FINDINGS OF FACT For the entire appeal period, the Veteran's degenerative disc disease of the thoracic spine has not presented such an exceptional or unusual disability picture with such related factors as frequent hospitalizations or marked interference with employment as to render impractical the application of the regular schedular standards. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent prior to July 24, 2006, and in excess of 20 percent thereafter, for degenerative disc disease of the thoracic spine on an extraschedular basis have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5237 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA has a duty to provide the Veteran notification of the information and evidence necessary to substantiate the claim 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) (West 2014); 38 C.F.R. § 3.159(b) (2015). The Veteran's claim for a higher initial rating on an extraschedular basis arises from disagreement with the initial evaluation that was assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of a claim. This duty includes assisting the Veteran in the procurement of service treatment records, pertinent post-service treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015). Here, the Veteran's service treatment records, personnel records, and post-service VA and private treatment records have been associated with the claims file. Additionally, the Veteran has not identified any records that have not been requested or obtained. The Veteran was afforded VA examinations in January 2004, July 2006, May 2011 and October 2011. As will be discussed below, this Veteran has a unique symptomatology pattern. The Board notes that the VA examiners did not specifically address these symptoms but instead focused on the criteria for a schedular rating. Nonetheless, as the Board is considering rather the Veteran is entitled to a higher rating on an extraschedular basis, the Board finds that, when taken together, the VA examination reports are adequate. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Additionally, the Board finds that the RO has substantially complied with the November 2011, April 2012, and October 2014 Board remand directives which included obtaining VA examinations and referring the case to the Director of Compensation and Pension Services. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); see also Stegall v. West, 11 Vet. App. 268 (1998). The Board thus finds that all necessary development has been accomplished and appellate review may proceed. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis The Veteran contends that he is entitled to a higher rating on an extraschedular basis because the schedular criteria do not take into account that lack of motion causes him pain. Schedular determinations are based on application of provisions of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. However, the regulations also provide for exceptional cases involving compensation. Pursuant to 38 C.F.R. § 3.321(b)(1) (2015), the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extraschedular evaluation if 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." 38 C.F.R. § 3.321(b)(1). At the outset, the Board notes that in a March 2015 decision, the Director of Compensation and Pension Services concluded that an extraschedular rating was not warranted. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16(b) purports to limit the Board's scope of review of the Director's decision and that the Board shall be the final authority on all benefits decisions under 38 U.S.C.A. § 7104(a). While Wages dealt with extraschedular TDIU, the CAVC recently extended a similar holding to extraschedular ratings under § 3.321(b). See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As such, the Board will make its own determination regarding whether the Veteran's symptoms warrant an extraschedular rating. In this regards, if the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. See Thun v. Peake, 22 Vet. App. 111 (2008). As noted in the May 2016 JMR, the Veteran has consistently stated that his back pain does not increase with motion. Rather, more motion creates less pain and immobility, such as in his occupation as an aircraft mechanic, wherein he often must "work in confine[d] spaces" and sometimes remain "immobile" while working overhead for extended periods of time, creates more pain. As also noted in the May 2016 JMR, it is therefore, unclear how the Veteran's schedular rating under the diagnostic criteria, which provides for progressively higher ratings as the onset of pain becomes earlier in the range of motion, adequately considers the Veteran's complaints of increased pain with no motion. The Board thus concludes that the Veteran's increased pain due to lack of motion is not considered in the schedular criteria and the schedular criteria does not adequately consider the Veteran's symptoms. However, in determining if a Veteran is entitled to an extraschedular rating, the inquiry does not stop at whether the Veteran's symptoms are contemplated in the schedular criteria. If the schedular evaluation does not contemplate the Veteran'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"). Turning to the evidence of record, the January 2004 VA examination shows that the Veteran reported that since his military discharge he had not been working. He reported that he was going to attend Air Tech School in February 2004. The Veteran also reported that he did not feel that he could do a job in which he had to sit or stand for a long period of time in the same position. He reported that he would have to have a job which allowed him to move around and stretch. At the July 2006 VA examination, the Veteran reported that he was employed checking out aircrafts. In a March 2009 statement, the Veteran reported that he must turn down jobs within his employment because he was unable to sit in a vehicle for a long period of time to get to a job site. The Veteran reported that this affects his ability to perform at his employment causing negative evaluations and eliminating any hope for promotions. At the May 2011 VA examination the Veteran reported that he was able to work at his usual job. He reported that he is able to drive. He stated that he has pain throughout all of these activities. At the October 2011 VA examination the Veteran reported that he has had episodes at work where he has had to leave work and to go home and go to bed. He reported that his occurs at least once every month. He reported that he will return to work the next day. He reported that he is incapacitated in bed until he has to go to work the next day. The Veteran reported that the time lost from work during the prior 12 months was one week. In a February 2012 statement, the Veteran reiterated that he must turn down jobs within his employment because he is unable to sit in a vehicle for a long period of time to get to a job site. He reported that this affects his ability to perform at his employment causing negative evaluations and eliminating any hope for promotions. In an April 2015 statement the Veteran reported that he was unable to perform at work which causes interference with his job. The Veteran reported that due to his back pain he recently had to switch his employment because it causes less stress on his back. The Veteran also asserted that the statue language states "such as" not "only" or "exclusive". The Veteran asserted that there can be other considerations to determine whether an extraschedular rating should be assigned. Based on the above, the Board finds that the evidence of record is against a finding that the Veteran has had frequent hospitalizations due to his service-connected low back disability. Nonetheless, the Board does find that the evidence of record demonstrates that the Veteran's low back disability interferes with his employment. However, the regulation states that the related factor is "marked" interference with employment, not just interference with employment. While "marked" is not defined in the regulations, according to 38 C.F.R. § 4.1, generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of time working from exacerbations or illnesses proportionate to the severity of the several grades of disability. Thus, interference with employment alone is not tantamount to concluding there has been marked interference with employment, meaning above and beyond that contemplated by the assigned 10 percent and 20 percent schedular ratings. See also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (reiterating that the disability rating, itself, is recognition that industrial capabilities are impaired). The Board acknowledges that the Veteran reported not being employed immediately following discharge; however, neither the lay or medical evidence of record indicates that his was due to his service-connected low back disability. Otherwise, outside of attending school after discharge, the Veteran has been employed throughout the appeal period, even with his service-connected low back disability. Thus, while the Veteran's low back disabilities interferes with his employment, to include missed time from work, negative performance evaluations, lack of promotion potential, and the need to switch jobs, the Board finds that there is no credible and persuasive evidence that shows that the Veteran's low back disability causes marked interference with employment. In other words, there is no persuasive evidence that the Veteran's low back disability interferes with the Veteran's employment beyond what he is already being compensated for under the schedular criteria. Finally, the Board acknowledges the Veteran's argument, that 38 C.F.R. § 3.321(b) states "such as" not "only" or "exclusive". The Board notes that the regulation says "such related factors as". The Board also acknowledges the Veteran's assertion that there can be other considerations to determine whether an extraschedular rating should be assigned. However, the Veteran has not set forth what other "related factors" he believes the Board should consider in determining that his disability picture is exceptional or unusual. Additionally, case law has not suggested any other "related factors" the Board should consider outside those set forth in the regulations. Therefore, the Board finds that under the related factors set forth in the regulation, the evidence does not support the proposition that the Veteran's service-connected low back disability presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b) (1). Further, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 10 percent prior to July 24, 2006, and in excess of 20 percent thereafter, for degenerative disc disease of the thoracic spine on an extraschedular basis is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs