Citation Nr: 1720745 Decision Date: 06/08/17 Archive Date: 06/21/17 DOCKET NO. 08-16 060 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an extraschedular evaluation for degenerative disc disease at L-5 to S-1 level with small herniated nucleus pulposis (low back disability), which is currently 40 percent disabling. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1984 to September 1984 and from November 2002 to August 2003. This case initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. In December 2015, the Board awarded a 40 percent evaluation for the Veteran's low back disability for the entire appeal period, and remanded this issue and others for further development. In September 2016, the Board remanded the Veteran's claim for a VA examination to determine the current severity of his back disability and whether it warrants extraschedular evaluation. It has since returned to the Board for further consideration. This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. Any future consideration of this appellant's case should take into account the existence of these records. FINDING OF FACT The rating schedule has reasonably contemplated the Veteran's level of disability and symptomatology and, therefore, the assigned schedular evaluation is adequate. The back disorder does not present such an exceptional or unusual disability picture as to render the application of the regular schedular provisions impractical. CONCLUSION OF LAW The criteria for an extraschedular rating for a low back disability have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. Additionally, the Board is satisfied that the Agency of Original Jurisdiction (AOJ) has complied with the specific directives in the Board's previous remand. Stegall v. West, 11 Vet. App. 268 (1998). In reaching this determination, the Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the Veteran's claim, and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Lay Evidence VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C.A. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Extraschedular Evaluation Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. See Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the Veteran 's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then the second inquiry is whether the Veteran's exceptional disability picture exhibits other related factors such as those described by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether an extraschedular rating is warranted. In compliance with the Board's September 2016 remand instructions, in January 2017, the AOJ issued a Supplemental Statement of the Case (SSOC), finding that the referral was unnecessary. The Board finds that the evidence of this case does not show an exceptional disability picture which would indicate that the available schedular evaluation for the Veteran's service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111, 118-19 (2008). A comparison of the level of severity and symptomatology of the Veteran's low back disability with the established criteria found in the rating schedule for that disability shows that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The record contains the results of multiple thorough examinations in which examiners detailed the Veteran's symptomatology and resulting functional limitations. Notably, a May 2014 QTC examination, associated with the file in August 2014, contains findings that the flexion of the Veteran's thoracolumbar spine was limited to 20 degrees, with pain beginning at 10 degrees. The report notes that the Veteran's last flare-up was in January 2014, which required an emergency room visit. During flare-ups, the Veteran reported being bed ridden for one to three days on average. Range of movement after repetitive use testing revealed that the Veteran suffers from functional loss as a result of his low back disability, including limited movement, pain, interference with sitting, standing, and/or weight-bearing, and disturbance of locomotion. The Veteran was also noted to have incapacitating episodes of less than one week due to his intervertebral disc syndrome. The Veteran required the regular use of assistive devices, including a back brace, cane, and walker. The examiner opined that the Veteran's low back disability impacts his ability work, as his pain causes difficulty in lifting, carrying, bending, walking, standing, sitting, climbing, and squatting. As directed the Board's September 2016 remand, the Veteran was afforded another VA examination in November 2016. The Veteran reported that he was dealing with chronic low back pain, which was exacerbated by movement, prolonged sitting, standing, walking, and heavy lifting. He also reported that he had taken a few days off from work because of back pain. The examination report reflects that the forward flexion of the Veteran's thoracolumbar spine was reported as limited to 80 degrees. Range of movement after repetitive use testing revealed that the Veteran suffers from functional loss as a result of his low back disability, including pain and fatigue. Additional factors contributing to the Veteran's disability were noted as instability of station, disturbance of locomotion, interference with sitting, and interference with standing. Mild radiculopathy with intermittent pain, numbness, and paresthesias and/or dysesthesias were reported for the right lower extremity. There was no ankylosis of the spine, intervertebral disc syndrome or other neurologic abnormality noted. The Veteran required the regular use of a cane and occasional use of a walker. The examiner reported that the Veteran's low back disability impacts his ability work. Specifically, the examiner stated that the Veteran's condition causes "limited mobility due to precipitating factors [described in the report] and his employment at a desk job." The examiner further noted lumbosacral strain with some mild S1 radiculopathy symptoms noted in right lower extremity and the MRI for the lumbar spine indicated facet arthropathy. She opined that this is as likely as not a progression of his service-connected back injury. Nonetheless, the examiner's findings do not rise to a level beyond a 40 percent rating. Under Diagnostic Code 5237, an evaluation of 40 percent is granted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A higher evaluation of 50 percent is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The examiner specifically made a finding that there was no ankylosis of the spine. In reviewing the above findings from both examinations, the Board finds that the examiners adequately portrayed any anatomical damage and functional loss in regard to the normal working movements as they relate to excursion, strength, speed, coordination, and endurance, as well as noting the effects on the Veteran of painful motion. 38 C.F.R. §§ 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The assigned schedular rating of 40 percent is based on symptoms and functional limitations expressly contemplated by the schedular criteria. The Veteran has complained that his symptoms result in significant occupational and social impairments and, indeed, the examiners in the May 2014 and November 2016 examinations made findings which would support the Veteran's contentions. Nonetheless, those symptoms and the associated functional impacts were considered in assigning the current 40 percent rating and it adequately reflects the Veteran's disability "picture" as a whole. Therefore, the criteria of the rating schedule reasonably contemplate the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate and no referral is required. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). This being so, the Board is not required to speculate further on the existence of related factors, which might or might not present an exceptional or unusual disability picture and its analysis is therefore at an end. See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. Claims LEXIS 319, 8-9 (Vet. App. March 17, 2017). The Board acknowledges an August 2016 statement from the Veteran's representative that contends that the Veteran's treatment records show a connection between the neurological and painful lumbosacral factors of his lower back disability, "making it far more severe than the VA examiner opined." The Veteran's representative also asserts that the neurological factors associated with the low back disability impact the Veteran's quality of life. By this contention, the Veteran and his representative have raised the issue of whether the Veteran's claim warrants extraschedular consideration due to the combined effect of the Veteran's other service-connected disabilities, where the combined effect of those disabilities is exceptional and not captured by schedular rating criteria. 38 C.F.R. § 3.321; Johnson v. McDonald, 762 F.3d 1362, 1365 (Fed. Cir. 2014). See also Yancy v. McDonald, 27 Vet. App. 484, 493-96 (2016). Moreover, separate service connection for neurological changes in the lower extremities has been established. The Board recognizes the Veteran's contentions that his low back disability symptoms have impacted his career. However, the rating schedule is adequate, even in regard to the collective and combined effect of all of the Veteran's service-connected disabilities and therefore, referral for extraschedular consideration is not warranted under the circumstances of this case. Johnson v. McDonald at 1365-66. There is no indication in the record that the Veteran's service-connected disabilities have produced any combined effect which is not contemplated by the schedular criteria for rating those conditions. For example, in regard to the assertion of the Veteran's representative of a connection between the neurological and lumbosacral factors, particularly as they relate to pain, the November 2016 examiner found that there were no neurological abnormalities associated with the Veteran's low back disability, nor could she conclude without "mere speculation" that pain itself significantly limits the Veteran's functional ability with flare-ups. Consistent with its interpretation of Johnson v. McDonald, the Board has considered only the Veteran's low back disability in its extraschedular analysis, as it is the only claim on appeal at this time. Additionally, the Board has also considered the Veteran's lay statements. As stated earlier in the decision, lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). For example, in his March 2008 statement, the Veteran states he cannot sit or stand for any length of time. Indeed, he so reported in his November 2016 VA examination, discussed above, stating that pain is exacerbated by the foregoing , as well as by walking and lifting. The Board does not doubt the Veteran's competence to observe his own incapacity for maintain postures and performing activities for any length of time. However, pain alone does not constitute functional impairment under VA regulations. Moreover, the rating schedule contains provisions which address the above functional losses as a result of pain and other orthopedic factors, such as weakness, weakened movement, incoordination, and fatigability, which are incorporated into the schedular rating criteria, as applied to Diagnostic Code 5237. See 38 C.F.R. §§ 4.40, 4.59, 4.71a; Mitchell v. Shinseki, 25 Vet. App. 32, 33-36 (2011). In his March 2010 statement, the Veteran notes that at his recent VA examination, the examiner had noted that he had experienced pain in the forward flexion maneuver at four degrees, but was able to continue to eight degrees. However, the findings in the Veteran's March 2010 VA examination are not current, they have been superseded by subsequent examinations. The latest examination findings in November 2016 indicated flexion at 80 degrees, in contrast to the May 2014 findings, which had indicated the flexion limit at 20 degrees. These findings do not suggest the need to apply extraschedular criteria. More relevantly, there is no medical evidence in the record indicating unfavorable ankylosis of the entire thoracolumbar spine, required for the next higher rating of 50 percent. 38 C.F.R. § 4.71a. As the degree of actual impairment caused by the Veteran's low back disability is adequately compensated for by the 40 percent schedular rating, the Board finds that an extraschedular rating is not warranted. The Board has considered the benefit-of-the-doubt doctrine; however, the preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to an extraschedular evaluation for degenerative disc disease at L-5 to S-1 level with small herniated nucleus pulposis (low back disability), which is currently 40 percent disabling, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs