Citation Nr: 1740348 Decision Date: 09/18/17 Archive Date: 09/29/17 DOCKET NO. 08-26 663 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The Veteran had active service from September 1966 to June 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision issued by the Department of Veterans Affairs (VA), Regional Office (RO), in Portland, Oregon. In February 2014, the Board denied entitlement to a disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine, and determined that referral for extraschedular consideration was not warranted. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2014 Order, the Court granted a Joint Motion for Partial Remand filed by the parties to vacate and remand the February 2014 Board decision, to the extent that it determined that referral for extraschedular consideration was not warranted. Thereafter, in an October 2014 decision, the Board again determined that referral for extraschedular consideration was not warranted. The Veteran once again appealed the Board's decision to the Court. In a March 2016 Order, the Court granted a Joint Motion for Remand filed by the parties to vacate and remand the October 2014 Board decision. The case was then returned to the Board in June 2016 and March 2017 at which time it was remanded for additional development. The case has since been returned to the Board for further review. As will be discussed further herein, the Board finds that the agency of original jurisdiction (AOJ) substantially complied with the remand orders, and no further action is necessary in this regard. By rating action dated in August 2017, separate service connection was awarded for radiculopathy of the sciatic nerves of the right and left lower extremities, each being assigned a 20 percent disability rating effective April 1, 2017. Given that service connection for radiculopathy of the sciatic nerves had not previously been in effect, the allowance represents a grant of the benefits sought on appeal. As the Veteran has not expressed disagreement with the initial award of the assigned separate ratings, the issues are not before the Board. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009). In the August 2008 substantive appeal, the Veteran had requested a Board hearing. However, in September 2009, he withdrew his request. As such, the hearing request is deemed withdrawn. See 38 C.F.R. § 20.704 (e) (2016). The Veteran's claims file has been converted into a paperless claims file via the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems. All records in such files have been considered by the Board in adjudicating this matter. FINDING OF FACT The Veteran's degenerative disc disease of the lumbar spine has not presented 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, so as to warrant referral for consideration of an extraschedular disability rating. CONCLUSION OF LAW The criteria for an extraschedular disability rating for the service-connected degenerative disc disease of the lumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. § 3.321 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2016), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; and (3) that VA will attempt to obtain. See Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. By letters dated in October 2006, June 2008, May 2009, December 2011, and June 2016 the Veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was also provided with the requisite notice with respect to the Dingess requirements. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. For increased-compensation claims, VCAA requirement is generic notice. The type of evidence needed to substantiate the claim is, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. See Vazquez-Flores v. Shinseki, 580 F. 3d 1270 (Fed. Cir. 2009); Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007). In this case, the Veteran was provided pertinent information in the above mentioned letters and other correspondence provided by the RO. Specifically, VA informed the Veteran of the necessity of providing, on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disability, and the effect that the worsening has on his employment and daily life. The Veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. The Veteran was also provided notice of the applicable relevant diagnostic code provisions. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran's relevant service, VA, and private medical treatment records have been obtained. There is no indication of any additional, relevant records that the RO failed to obtain. The Veteran has been medically evaluated. The Board further observes that this case was most recently remanded in March 2017 in order to afford the Veteran an additional VA examination. Thereafter, a VA examination report dated in April 2017 was associated with the Veteran's claims file. As such, the Board finds that the AOJ has substantially complied with the remand directives such that no further action is necessary in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). In sum, the Board finds that the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandates of the VCAA. Increased Disability Ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. The Veteran's degenerative disc disease of the lumbar spine is currently rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5242, which provides the rating criteria for degenerative arthritis of the spine. Diagnostic Code 5242 dictates that such disability is to be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. To accord justice in exceptional cases where the schedular standards are found to be inadequate, an RO is authorized to refer the case to the Under Secretary for Benefits or the Director of Compensation Service for assignment of an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: a finding that 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). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, if the schedular rating does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate the Veteran's disability picture and that picture has attendant thereto 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 Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. VA and private medical treatment records reveal that the Veteran has a history of chronic back pain. Specifically, the records show that the Veteran receives periodic treatment from both VA and private providers for complaints of back pain. VA treatment records indicate that the Veteran has been treated for his degenerative disc disease through relatively conservative means, to include prescribed pain medications. Private treatment records include a letter from the Veteran's chiropractor dated July 2007 that opined the Veteran should be reclassified to a greater level of disability. There were no additional reasons provided for this statement and no accompanying outpatient treatment record. A VA examination report dated in October 2006 shows that the Veteran reported working as a service station manager 40 to 50 hours per week. He reported two or three flare-ups in the preceding year, causing an increase in pain and a decrease in range of motion. He indicated that sweeping and mopping floors, standing behind a cash register, and repetitive bending increased his back pain. The examiner reviewed the claims file, and noted no incapacitating episodes in the preceding 12 months, and no bladder, bowel or erectile dysfunction. On examination, the Veteran exhibited an antalgic gait favoring the right lower extremity. He exhibited no spasms, but did complain of tenderness to firm palpation about the lumbosacral spine. Strength of the lower extremities was normal. He exhibited slow and stiff movements when rising from a chair, and reported that his back pain limited him to lifting less than 50 pounds. Range of motion testing revealed right lateral flexion to 20 degrees with pain from 12 to 20 degrees; left lateral flexion to 18 degrees with pain from 12 to 18 degrees; right rotation to 20 degrees; left rotation to 15 degrees with pain from 10 to 15 degrees; extension to 14 degrees with pain from 10 to 14 degrees; and forward flexion to 70 degrees with pain from 40 to 70 degrees. After repetitive-use testing, forward flexion improved to 76 degrees. The examiner noted that pain would be a limiting factor with repetitious activities involving the thoracolumbar spine. A VA examination report dated in June 2008 shows that the Veteran reported he was employed full time as a service station manager. He described flare-ups every three to four months, and that he was absent from work less than one week during the previous 12 months. He also reported a history of spasms, weakness, stiffness, and pain of the entire spine. Physical examination revealed no ankylosis of the lumbar spine. The examiner noted no incapacitating episodes in the prior 12 months. Range of motion was tested to show right lateral flexion to 15 degrees with pain from 10 to 15 degrees; left lateral flexion to 13 degrees with pain from 8 to 13 degrees; lateral rotation, both left and right, to 12 degrees with pain at 12 degrees; extension to 14 degrees with pain from 10 to 14 degrees; and flexion to 45 degrees with pain from 20 to 45 degrees. The examiner noted increased pain after repetitive use. However, the only additional functional loss after repetitive use was during forward flexion, which decreased to 40 degrees. The Veteran reported that his back pain limited his lifting to thirty-five pounds at any one time, and to ten pounds on a more frequent basis. He also reported that he must sit for a couple of minutes after fifteen minutes of standing or walking. A VA examination report dated in October 2008 shows that the Veteran reported he was employed full time as a service station manager. He also reported that treatment for his degenerative disc disease of the lumbar spine consisted of Vicodin and home exercises. He reported falls and unsteadiness, but the October 2008 VA examiner attributed these symptoms to the Veteran's degenerative joint disease of the knees and nerve damage to the thighs. The Veteran also reported a history of fatigue, decreased motion, stiffness, weakness, and pain with chores related to activities of daily living. He stated that he could walk one quarter mile at a time but that his back pain resulted in decreased mobility, as well as difficulty lifting, carrying, and reaching, and a lack of stamina. He stated that he was absent from work for five days in the previous twelve months. Physical examination revealed no evidence of spasm, atrophy, weakness, and ankylosing of the thoracolumbar spine. There was guarding, pain with motion, and tenderness. He also had a waddling gait. Range of motion testing exhibited left and right lateral flexion both to 20 degrees with pain at 20 degrees; lateral rotation, both left and right, to 20 degrees with pain at 20 degrees; extension to 10 degrees with pain at 10 degrees; and flexion to 20 degrees with pain at 20 degrees. The VA examiner opined that the measurements represented "normal" range of motion for the Veteran given the Veteran's body habitus and disabilities other than the degenerative disc disease of the lumbar spine. A VA examination report dated in January 2012 shows that the Veteran reported working as a service station manager. The Veteran indicated that since the last VA examination, his back instability had increased, causing several falls. He reported flare-ups every three to four months that were incapacitating and would not allow him to work. Range of motion testing revealed forward flexion to 45 degrees with pain at 30 degrees; extension to 20 degrees with pain at 15 degrees; lateral flexion, both left and right, to 20 degrees with pain at 15 degrees; and lateral rotation, both left and right, to 5 degrees with pain at 5 degrees. The Veteran reported that his degenerative disc disease of the lumbar spine makes it difficult to perform the necessary physical tasks of servicing cars, that he has fallen on several occasions, and that he has difficulty walking, lifting, carrying, standing, or sitting for long periods. The Veteran was able to perform repetitive-use testing, which revealed post-test range of motion of forward flexion to 35 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees and right and left lateral rotation to 5 degrees. The Veteran exhibited an abnormal gait, had an abnormal spinal contour, and demonstrated guarding and/or muscle spasms. However, he had no muscle atrophy. A private medical record from J. Chambers, D.C., dated in July 2016, shows that the Veteran's chiropractor indicated that she had been treating him for back, hip, and neck pain on an as-needed basis since 2010. Chiropractic adjusting was said to give temporary relief. According to August 2010 radiographic images, he was noted to have moderate to severe facet arthritis from L3 through S1, and moderate multi-level degeneration in the thoracic spine. A VA examination report dated in August 2016 shows that the Veteran reported increased pain with shooting pain down both legs, worse on the right. He described intermittent numbness of the anterolateral aspect of each thigh. Physical examination revealed range of motion of 35 degrees of forward flexion, 5 degrees of extension, 5 degrees of right and left lateral flexion, and 10 degrees of right and left lateral rotation. No pain was noted on examination. There was no evidence of localized tenderness or pain on palpation and no evidence of pain with weight bearing. There was no additional loss of function following repetitive use. The examination findings were said to have low reliability as the examination was medically inconsistent with the Veteran's statements. There was no guarding or muscle spasm. Muscle strength and reflex testing was normal. There was no ankylosis and no intervertebral disc syndrome. There was markedly limited lumbar range of motion in all directions, but no clinical evidence of lumbar instability. In an addendum, the VA examiner added that while the Veteran had been noted to have instability of station in January 2012, he did not demonstrate that on examination. The examiner commented that instability of station was completely different from spinal instability, which, based on two magnetic resonance imaging (MRI) studies, was not even suspected. A VA examination report dated in April 2017 shows that the Veteran reported that his back pain had worsened. He described that the pain was all over his body, and that it would become challenging to isolate the pain related to the back condition itself. He would treats with analgesics and non-steroidal anti-inflammatory drugs as needed. He described flare-ups are hitting like fire with burning and stabbing pain. He added that he had to give up his job and could no longer work. Physical examination revealed range of motion of 40 degrees of forward flexion, 10 degrees of extension, 15 degrees of right and left lateral flexion, and 20 degrees of right lateral rotation and 15 degrees of left lateral rotation. There was no additional loss of function following repetitive use. Pain was noted on rest and non-movement and on weight-bearing and non-weight-bearing; however, there was no objective evidence of localized tenderness or pain on palpation or muscle spasms or guarding of movement. There was no objective evidence of muscle atrophy or ankyloses of the spine. There was no intervertebral disc syndrome. The examiner indicated that the Veteran should refrain from participating in employment tasks that required him to repetitively flex, extend, or rotate his thoracolumbar spine. He should be accommodated with the use of a chair when needed and allowed to readjust anatomical positioning while at work as needed. He may find it optimal to seek employment at a desk job where talents of a more cerebral nature may be utilized. Employment to avoid would include construction labor or warehouse stocking - as the duties required with these types of jobs may worsen his condition. The examiner concluded that he could not distinguish between the symptoms associated with the service-connected lumbar spine disability and any symptoms associated with non-service-connected disorder. Having carefully considered the Veteran's claim in light of the regulations governing extraschedular considerations, the Board finds that the first prong of Thun is not met. In this regard, the Veteran reports that his degenerative disc disease of the lumbar spine causes instability, which leads to falls. The rating criteria under the General Rating Formula for Diseases and Injuries of the Spine, as summarized above, do not contemplate such symptom. However, while the Veteran has in the past exhibited an antalgic gait favoring the right lower extremity, and the Veteran had a waddling gait, and reported falls and unsteadiness, on VA examination in October 2008, the VA examiner specifically attributed these symptoms to the Veteran's degenerative joint disease of the knees, and nerve damage to the thighs. He had continued similar complaints on VA examination in January 2012. As indicated above, in August 2016, the VA examiner concluded that while the Veteran had been noted to have instability of station in January 2012, he did not demonstrate that on examination; and that instability of station was completely different from spinal instability, which, based on two MRI studies, was not even suspected. While the Veteran is competent to report experiencing unsteadiness, he is not competent to attribute such symptom to the service-connected back disability at issue, as opposed to other disabilities. Such is a complex medical matter which does not lend itself to lay opinion. Thus, the Board affords greater probative weight to the opinions of the VA examiners as set forth above that attribute any unsteadiness to knee disability and thigh nerve damage, and conclude that spinal instability was not even suspected. As the Veteran's unsteadiness has been distinguished from manifestations of the service-connected back disability, it is not for consideration in rating the disability. The Board notes that the Veteran also reported symptoms of difficulty standing, walking, sitting, lifting, and carrying. However, such difficulties are contemplated by the schedular ratings, which are meant to reflect the average impairments of earning capacity caused by a disability. See 38 U.S.C.A. § 1155 (West 2002). The Board acknowledges that the Veteran also exhibited painful range of motion, weakness, and excess fatigability. However, these symptoms are for consideration in determining functional loss as it pertains to a schedular rating. See 38 C.F.R. §§ 4.40, 4.45, and 4.50; See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Moreover, range of motion has been shown to have increased on the most recent examination. While this is not evidence of sustained improvement, it certainly does not lend to the suggestion of an unusual disability picture. Nonetheless, these symptoms are not for consideration here as the issue before the Board is of entitlement to an extraschedular rating. In light of the foregoing, t the evidence does not present such an exceptional disability picture that the available schedular rating criteria for the Veteran's back disability are inadequate. See Thun, 22 Vet. App. 111. As the Board has determined that the schedular rating contemplates the Veteran's level of disability and symptomatology and schedular rating is not inadequate, an analysis of the remaining criteria under Thun is not warranted. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular disability rating based upon the combined effect of multiple conditions in an exceptional circumstance where the rating 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 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. ORDER A disability rating in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine on an extraschedular basis is denied. ____________________________________________ B. T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs