Citation Nr: 1752765	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  08-13 106A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to a rating greater than 20 percent prior to October 2, 2007, for lumbar spine degenerative disc disease (low back disability).

2.  Entitlement to a rating greater than 40 percent from October 2, 2007, through April 6, 2017, and greater than 60 percent from April 7, 2017 for a low back disability.   

3.  Entitlement to a total disability rating based upon individual unemployability prior to October 2, 2007.


REPRESENTATION

Appellant represented by:	Disabled American Veterans




WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from February 1982 to February 1985.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO) which denied a rating in excess of 20 percent for the low back disability.

In September 2010, the Veteran testified at a hearing before the undersigned.  A transcript is of record.

This claim was previously before the Board in August 2011 and January 2017, at which time the Board remanded it for additional development.  In a September 2017 rating decision, a TDIU was granted from October 2, 2007, and therefore, entitlement to a TDIU is only being considered prior to that date.  See Rice v. Shinseki, 22 Vet. App. 447 (2009); AB v. Brown, 6 Vet. App. 35 (1993) (in an appeal in which the veteran expresses general disagreement with the assignment of a particular rating and requests an increase, the RO and the Board are required to construe the appeal as an appeal for the maximum benefit allowable by law or regulation).  Similarly, because the September 2017 rating decision increased the rating for the low back disability from 40 to 60 percent from April 7, 2017, the Board has characterized this issue as it appears above.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB, supra.

As an additional matter, the Veteran's claim of entitlement to an initial rating greater than 10 percent for left leg sciatic radiculopathy was remanded by the Board in September 2017 for additional development.  It has not been recertified to the Board for appellate disposition.  Certification is used for administrative purposes and does not serve to either confer or deprive the Board of jurisdiction over an issue.  38 C.F.R. § 19.35(2017).  However, when an appeal is certified to the Board for appellate review and the appellate record is transferred to the Board, the appellant and his or her representative, if any, will be notified in writing of the certification and transfer and of the time limit for requesting a change in representation, for requesting a personal hearing, and for submitting additional evidence.  See 38 C.F.R. §§ 19.36, 20.1304(a) (2017).  Therefore, the Board declines to take any further action on this issue at this time.  This delay is needed to ensure that the Veteran is afforded full due process in the matter.  See 38 C.F.R. § 3.103(2017); Gray v. McDonald, 27 Vet. App. 313, 327 (2015) (Due process protections apply to disability compensation proceedings before the Board) (citing Cushman v. Shinseki, 576 F.3d 1290 (Fed. Cir. 2009)); see also Carter v. McDonald, 794 F.3d 1342, 1346 (Fed. Cir. 2015) (regulatory requirement of notice in § 1.525(d) can only sensibly be construed to require that the notice to counsel be timely, which requires, at a minimum, notice before the expressly stated deadline has passed).  Furthermore, the state of the record indicates that the development ordered in the September 2017 Board remand has not yet been completed.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2014).

The issues of entitlement to a rating greater than 20 percent prior to October 2, 2007, for the low back disability and to a TDIU prior to October 2, 2007, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1.  From October 2, 2007, through April 6, 2017, the preponderance of the evidence showed that Veteran's low back disorder was not manifested by ankylosis, did not cause incapacitating episodes having a total duration of at least six weeks during any 12 month period during this time frame, and was best characterized by adverse symptomatology that equated to no more that recurring attacks with intermittent relief.

2.  From April 7, 2017, the Veteran has been in receipt of the maximum available schedular rating for her low back disability and the most probative evidence of record shows that it does not cause marked interference with employment or required frequent periods of hospitalization rendering impractical the use of the regular schedular standards.


CONCLUSION OF LAW

The criteria for a rating greater than 40 percent from October 2, 2007, through April 6, 2017, and greater than 60 percent from April 7, 2017 for the low back disability have not been met.  38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2003); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5243 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017).  The duty to notify has been met through September 2003 and February 2007 letters sent to the Veteran.
The Board finds that the duty to assist a claimant has been satisfied.  The Veteran's service treatment records are on file, as are various post-service medical records, Social Security Administration (SSA) records, VA examination reports, and lay statements.  The Board finds that there has been substantial compliance with the prior remand instructions regarding a VA examination and no further action is necessary.  See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)).

The Veteran was also afforded a hearing before the Board.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the acting VLJ identified the issues to the Veteran, and the Veteran testified as to her treatment history, symptoms, and functional impairment.  She specifically responded to questions regarding the presence or absence of adverse neurological symptomatology.  Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103 (c)(2), nor have they identified any prejudice in the conduct of the Board hearing.  The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements.  As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time.

After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

II.  The Rating Claim

Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C. § 1155 (West 2014); 38 C.F.R. § 4.1 (2017).  Separate diagnostic codes identify the various disabilities.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10 (2017).  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited.  38 C.F.R. § 4.14 (2017).  A claimant may not be compensated twice for the same symptomatology as "such a result would over compensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, when a veteran has separate and distinct manifestations attributable to the same injury, she should be compensated under different diagnostic codes.  Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993).

In evaluating the evidence, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Owens v. Brown, 7 Vet. App. 429, 433 (1995).

The Veteran's service-connected low back disability has been rated as 40 percent disabling under 38 C.F.R. § 4.71a from October 2, 2007, through April 6, 2017, and as 60 percent disabling from April 7, 2017.  

During the pendency of this appeal, regulatory changes amended the VA Schedule for Rating Disabilities, 38 C.F.R. Part 4, including the criteria for rating disabilities of the spine.  Moreover, a review of the record on appeal shows the Veteran was provided notice of these changes.  However, in adjudicating the appeal, the Board is required to consider the claim in light of both the former and revised schedular criteria to determine whether a higher initial disability rating is warranted for the Veteran's muscle strain of the back with low back pain.  The General Counsel for VA has determined that the amended rating criteria, if favorable to the claim, can be applied only for the periods from and after the effective date of the regulatory change.  However, the Veteran does get the benefit of having both the former and revised regulations considered for the period after the change was made.  See VAOPGCPREC 3-2000.  That guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made.  See 38 U.S.C. § 5110(g) (West 2014); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

Ankylosis

Diagnostic Code 5286 (in effect prior to September 26, 2003) provided ratings for complete bony fixation (ankylosis) of the spine.  Ankylosis of the spine in a favorable angle was to be rated 60 percent disabling.  Ankylosis of the spine in an unfavorable angle, with marked deformity and involvement of major joints (Marie-Strumpell type) or without other joint involvement (Bechterew type), was to be rated 100 percent disabling.  38 C.F.R. § 4.71a.  Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  See Lewis v. Derwinski, 3 Vet. App. 259 (1992).  

Diagnostic Code 5289 (in effect prior to September 26, 2003) provided ratings for ankylosis of the lumbar spine.  Favorable ankylosis of the lumbar spine was to be rated 40 percent disabling.  Unfavorable ankylosis of the lumbar spine was to be rated 50 percent disabling.  38 C.F.R. § 4.71a.

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) in effect since September 26, 2003, a 40 percent rating is warranted with favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243.  Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, are separately evaluated under an appropriate Diagnostic Code.  38 C.F.R. § 4.71a, at Note (1).

At an October 2007 VA examination there was not ankylosis of the thoracolumbar spine.  February 2008 VA chiropractic treatment records indicate that the Veteran had limited motion in the lumbar spine.  An August 2009 VA examiner wrote that the Veteran did not have spine ankylosis.  The Veteran had an additional VA examination in May 2012 at which she did not have ankylosis of the thoracolumbar spine.  A September 2016 VA examiner wrote that there was no ankylosis of the spine.  The Veteran had another VA examination on April 7, 2017, at which the examiner wrote that there was not ankylosis of the spine.  The clinical records do not show a diagnosis of spinal ankylosis and these records are not contradicted by any other medical evidence of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).  Therefore, the Board finds that the preponderance of the evidence of record shows that the Veteran's low back disability has not been manifested by ankylosis at any time from October 2, 2007.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases)

Accordingly, the Board finds that the criteria for higher evaluations have not been met for the Veteran's service-low back disability based on ankylosis for any period from October 2, 2007, under the rating criteria in effect prior to September 26, 2003, under Diagnostic Codes 5286 or 5289 or under the current General Rating Formula.  38 C.F.R. § 4.71a (2002); 38 C.F.R. § 4.71a (2003); 38 C.F.R. § 4.71a (2017).  Therefore, the Board finds that the claim for higher ratings due to ankylosis is denied at all times from October 2, 2007.  See Hart, supra. 

In reaching the conclusion, the Board has not overlooked that the Court's recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) in which it implied the Board should consider the regulations governing rating disabilities due to painful joint motion (i.e., 38 C.F.R. §§ 4.40, 4.45 (2017)) even when rating a disability based on ankylosis.  However, the Court in Johnston v. Brown, 10 Vet. App. 80 (1997) had earlier held that in the absence of ankylosis the Board may not rate his service-connected cervical spine disability as ankylosis.  Likewise, in Spencer v. West, 13 Vet. App. 376, 382 (2000) the Court held the regulatory provisions (i.e., 38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss were not applicable to rating disabilities due to ankylosis.  Therefore, because the Court in Sharp declined to specifically say it was overruling its earlier decisions in Johnston and Spencer, the Board will continue to follow these earlier Court holdings until the Court specifically says otherwise.

Limitation of Motion and Lumbosacral Strain

The maximum schedular rating for limitation of motion of the lumbar spine is 40 percent under Diagnostic Code 5292 of the old rating criteria and under the General Rating Formula under the current rating criteria.  See 38 C.F.R. § 4.71a.  See also Spencer, supra; Johnston, 10 Vet. App. at 85 (holding that 38 C.F.R. § 4.40 and 4.45 do not apply and that a higher rating is not warranted for painful motion or functional loss when the maximum schedular disability rating based on limitation of motion is in effect).  Likewise, the maximum schedular rating for lumbosacral strain is 40 percent under Diagnostic Code 5295 of the old rating criteria.  Id.  

Therefore, the Board finds that the Veteran is not entitled to a rating in excess of 40 percent for limitation of motion of the thoracolumbar spine or due to lumbosacral strain for any period from October 2, 2007, under the rating criteria in effect prior to September 26, 2003, or under the current General Rating Formula.  38 C.F.R. § 4.71a (2002); 38 C.F.R. § 4.71a (2003); 38 C.F.R. § 4.71a (2017).  Therefore, the Board finds that the claim for higher ratings due to limitation of motion and/or lumbosacral strain is denied at all times from October 2, 2007.  See Hart, supra. 

Intervertebral Disc Syndrome

Diagnostic Code 5293 (in effect prior to September 23, 2002) provided ratings based on intervertebral disc syndrome.  Severe intervertebral disc syndrome with recurring attacks with intermittent relief was to be rated 40 percent disabling.  Pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, little intermittent relief, was to be rated 60 percent disabling.  38 C.F.R. § 4.71a.

Diagnostic Code 5293 (in effect from September 23, 2002, through September 25, 2003) provided that intervertebral disc syndrome (preoperatively or postoperatively) was to be rated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate ratings of its chronic orthopedic and neurologic manifestations along with ratings for all other disabilities, whichever method results in the higher rating.  Specifically, it provided a 40 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a.

Notes following Diagnostic Code 5293 (in effect from September 23, 2002, through September 25, 2003) provided guidance in rating intervertebral disc syndrome.  Note (1) provided that, for purposes of ratings under Diagnostic Code 5293, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.  Note (2) provide that, when evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes.  Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes.  Note (3) provide that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, rate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher rating for that segment.  38 C.F.R. § 4.71a.

Under Diagnostic Code 5243 (in effect from September 26, 2003), intervertebral disc syndrome is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based upon Incapacitating Episodes, whichever results in the higher rating.  The Formula for Rating Intervertebral Disc Syndrome provides for a 40 percent evaluation was assigned for incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past twelve months; and a 60 percent evaluation was assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  

A note following Diagnostic Code 5243 defines an incapacitating episode as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, note 1.  Note 2 provides for separate evaluations if intervertebral disc syndrome is present in more than one spinal segment if the effects are distinct.
Diagnostic Code 5293 (in effect prior to September 23, 2002)

As to a rating in excess of 40 percent for the period from October 2, 2007, through April 6, 2017, based on intervertebral disc syndrome under the criteria in effect prior to September 23, 2002, the Board notes that while at the October 2007 VA examination there was pain and muscle spasm, ankle and knee jerks were both hyperactive without clonus.  Similarly, at the September 2009 VA examination muscle spasms were present but ankle and knee jerks were normal.  The Board also notes that a separate evaluation has been in effect for sciatic radiculopathy to the left lower extremity.  Moreover, the Veteran said at the May 2012 VA examination that she had muscle spasms with sharp, stabbing, and shooting pain.  Stretching and light exercise helped ease the pain.  On examination there was tenderness to palpation, primarily in the left perispinal muscles form the mid-thoracic level to sacrum but not including the SI joint.  There was moderate tenderness in the piriformis area on the left and mild muscle spasms in the left perilumbar area.  Furthermore, while treatment records generated during this period of time document her complaints and treatment for the problems caused by her intervertebral disc syndrome, the Board finds that nothing in these records show her adverse symptomatology to be worse than was reported in the above VA examinations.  See Colvin, supra. 

Overall, the Board finds that the preponderance of the evidence shows that the Veteran's intervertebral disc syndrome did not approximate the criteria for at least the next higher, 60 percent rating, under the criteria in effect prior to September 23, 2002.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002).  The Board has reached this conclusion because the preponderance of the evidence showed that it did not equate to pronounced intervertebral disc syndrome because, while the record showed characteristic pain, it did not also show he had problems with demonstrable muscle spasm, absent ankle jerk, or other neurological findings with little intermittent relief.  See Owens, supra.  Therefore, the Board finds that the claim for a rating in excess of 40 percent for intervertebral disc syndrome under the criteria in effect prior to September 23, 2002, is denied at all times from October 2, 2007, through April 6, 2017.  See Hart, supra. 

Diagnostic Code 5293 (in effect from September 23, 2002, through 
September 25, 2003) & Diagnostic Code 5243 (in effect from September 26, 2003),

As to a rating in excess of 40 percent for the period from October 2, 2007, through April 6, 2017, based on intervertebral disc syndrome under the criteria in effect from September 23, 2002, through September 25, 2003, and from September 26, 2003, the Board notes that the October 2007 VA examiner did not provide an opinion regarding whether the Veteran required bedrest.  The August 2009 VA examiner wrote that there were no incapacitating episodes of lumbar pain in the past year that caused the Veteran to be placed on bedrest.  The May 2012 VA examiner wrote in a June 2012 examination report addendum that there were no time periods of incapacitation during any time period since the Veteran started her appeal.  The September 2016 VA examiner wrote the Veteran did not require bedrest due to intervertebral disc syndrome.  These medical opinions are not contradicted by any other medical evidence of record.  See Colvin, supra.  In this regard, while treatment records generated during this period of time document her complaints and treatment for the problems caused by her intervertebral disc syndrome, the Board finds that nothing in these records show her adverse symptomatology to be worse than was reported in the above VA examinations.  Id.

Therefore, the Board finds that the preponderance of the evidence shows that the Veteran's intervertebral disc syndrome did not approximate the criteria for at least the next higher, 60 percent rating, under old Diagnostic Code 5293 or new Diagnostic Code 5243.  The Board has reached this conclusion because the preponderance of the evidence shows that it did not cause incapacitating episodes having a total duration of at least six weeks during any 12 month period from October 2, 2007, through April 6, 2017.  See Owens, supra.  Therefore, the Board finds that the claim for a rating in excess of 40 percent for intervertebral disc syndrome under the criteria in effect from September 23, 2002, through September 25, 2003, and from September 26, 2003,is denied at all times from October 2, 2007, through April 6, 2017.  See Hart, supra. 

Finally, the Board will consider whether the Veteran is entitled to a rating in excess of 60 percent for the period from April 6, 2017, based on intervertebral disc syndrome under the criteria in effect prior to September 23, 2002, in effect from September 23, 2002, through September 25, 2003, and in effect from September 26, 2003. 

In this regard, the Board finds that an increased rating is not warranted under the criteria in effect prior to September 23, 2002, in effect from September 23, 2002, through September 25, 2003, and in effect from September 26, 2003, because the 60 percent rating already assigned the disability meets the maximum rating possible under this criteria.  38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017); Hart, supra. 

Other Considerations

The record does not show residuals of fractures of the vertebra.  Therefore, THE Board finds that Diagnostic Code 5285, in effect prior to September 26, 2003, is not applicable to the claim at any time from October 2, 2007; Hart, supra; Also see Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). 

Each of the ways by which the back is ratable contemplates limitation of motion.  See 38 C.F.R. § 4.71a, VAOPGCPREC 36-97; 63 Fed. Reg. 31262 (1998).  Therefore, the Board also finds that assigning her separate ratings on the basis of both limitation of motion and other symptoms, such as those set forth in Diagnostic Code 5243, would be inappropriate.  38 C.F.R. § 4.14 (2017).  

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2017).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

However, the Board finds that the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected low back disability is inadequate.  A comparison between the level of severity and symptoms of the Veteran's service-connected low back disability with the established criterion shows that they reasonably describe her disability levels and symptomatology (i.e., pain and lost motion).  In short, there is nothing in the record to indicate that the service-connected disability causes impairment with employment over and above that is contemplated in the assigned schedular ratings.  The Board, therefore, has determined that referral of this issue for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted at any time from October 2, 2007.  See Hart, supra.

In reaching this conclusion, the Board has not overlooked the decision by the United States Court of Appeals for the Federal Circuit in Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) in which it held that the plain language of 38 C.F.R. 3.321(b)(1) provides for referral for extraschedular consideration based on the collective impact of multiple service-connected disabilities.  However, the Board finds no basis to conclude that there is a "compounding" or collective impact between the above service-connected disabilities and indeed, neither the Veteran nor her representative has asserted otherwise.  As such, the Board finds that even taking into account Johnson this matter need not be remanded for referral to the Director, Compensation Service, for extraschedular consideration.

Lastly, in reaching this conclusion the Board has not overlooked the Veteran's and others competent lay claims about what they can see and/or feel.  See Davidson, supra.  However, the Board finds more probative the medical opinions provided by the healthcare providers at her VA examinations and in her treatment records than these lay claims because the healthcare providers have medical training.  See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data).
ORDER

A rating greater than 40 percent from October 2, 2007, through April 6, 2017, and greater than 60 percent from April 7, 2017, for a low back disability is denied.


REMAND

The Veteran is seeking a rating greater than 20 percent for her low back disability prior to October 2, 2007.  As discussed in the Board's January 2017 remand, the Court held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  See also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (holding that VA must consider the range of motion of a joint in both active and passive motion, weight-bearing, and nonweight-bearing situations when rating a disability based on lost motion). 

The Board remanded the claim to obtain retrospective opinions on active and passive range of motion and weight-bearing and nonweight-bearing ranges of motion.  The April 2017 VA examination report did not include this information.  Compliance by the Board or the RO with remand instructions is neither optional nor discretionary.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  Therefore, a new opinion must be obtained before the claim can be decided.  The Board also notes that the Court has held that "[B]efore the Board can accept an examiner's statement that an opinion cannot be provided without resorting to speculation, it must be clear that this is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner."  See Sharp, 29 Vet. App. at 36 (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)).

The assignment of a disability rating for the Veteran's low back disability prior to October 2, 2007 may impact whether she qualifies for a TDIU prior to October 2, 2007, as set forth in 38 C.F.R. § 4.16(a) (2017).  As such, the claims are inextricably intertwined and must be considered together, and a decision by the Board on the Veteran's TDIU claim would, at this point, be premature.  See Henderson v. West, 12 Vet. App. 11, 20 (1998).  

As to the TDIU claim, the Board notes that in April 2017 the Veteran submitted employment information indicating that she worked at a YMCA from April 2006 to March 2007.  She did not include salary information and therefore the Board can ascertain if this was marginal employment.  On remand the Veteran should be asked again to provide this information as well as notified that her claim may be considered abandoned and denied if she fails to provide the requested information.  See 38 C.F.R. § 3.158(a) (2017); Hurd v. West, 13 Vet. App. 449, 452 (2000) (when the RO requests additional evidence and the appellant does not respond within one year, the claim is considered abandoned under 38 C.F.R. § 3.158); Wamhoff v. Brown, 8 Vet. App. 517, 521-22 (1996) (when an appellant does not furnish the requested evidence within the specified one year of the request, the RO is required, by VA regulations, to consider the claim abandoned); Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012) (holding that even if an appellate is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere," regardless of whether an appellant has actual knowledge of what is in the regulations.).   

Accordingly, these issues are REMANDED to the AOJ for the following actions:

1.  Ask the Veteran to submit a complete and updated VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that includes salary information for her employment with a YMCA from April 2006 to March 2007.

Notify the Veteran that her TDIU claim can be considered abandoned and denied if she fails to provide the requested information.  See 38 C.F.R. § 3.158(a).

2.  Notify the Veteran that she may submit lay statements from herself and from other individuals who have first-hand knowledge of the problems caused by her service connected low back disability from January 2001 to October 2007, including any problems with employment.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3.  Thereafter, obtain an addendum to the April 2017 VA low back examination report.  The Veteran's claims folder should be provided to the reviewer prior to completion of the opinion.  The claims folder must be made available to and reviewed by the examiner.  After a review of the record on appeal and any needed testing, the examiner is to identify all low back pathology found to be present from January 2001 through October 1, 2007, including providing VA with the following information in accordance with the Court's holdings in Correia and Sharp:

A.  Range of Motion Studies:

(i)  the examiner should provide a retrospective opinion on the low back range of motion (flexion, extension, rotation, and side to side bending) in active motion, passive motion, weight-bearing, and nonweight-bearing from January 2001 through October 1, 2007; 

(ii)  to the extent possible, the examiner must express any functional loss from January 2001 through October 1, 2007, in terms of additional degrees of limited low back motion (flexion, extension, rotation, and side to side bending ) (i.e., the extent of the Veteran's pain-free motion), to specifically include if her pain was not ameliorated by her medication regimen.  See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria);

(iii)  and in providing the requested opinions regarding the range of motion, the examiner must also comment on any reports of flare-ups to include describing, if possible, any additional degrees of limited motion during these flare-ups.

B.  Other Findings:

(iv)  The examiner should also state whether from January 2001 through October 1, 2007, the low back disability was productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes.  

(v)  Further, the examiner should discuss whether from January 2001 through October 1, 2007, the Veteran had bowel or bladder problems related to her low back disability.

(vi)  The examiner should also state whether from January 2001 through October 1, 2007, the low back disability caused listing of the whole spine to opposite side, positive Goldthwaite's sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion.

(vii)  The examiner should also state the degree to which from January 2001 through October 1, 2007 her low back disability by itself and in in connection with her other service-connected disabilities limited the activities regularly required by employment to include lifting, pulling, standing, driving, sitting, etc. . . . at any time during the pendency of the appeal.

If the examiner feels that any of the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

6.  Then adjudicate the appeal under the criteria in effect prior to September 23, 2002, in effect from September 23, 2002, through September 25, 2003, and in effect from September 26, 2003.  If any benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC) that gives her notice of all the evidence added to the record since the most recent SSOC as well as notice of 38 C.F.R. § 3.158(a) as well as the criteria in effect prior to September 23, 2002, in effect from September 23, 2002, through September 25, 2003, and in effect from September 26, 2003.  The Veteran should be given an appropriate opportunity for response before returning the appeal to the Board.

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 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. §§ 5109B, 7112 (West 2014).



______________________________________________
NEIL T. WERNER
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs