Citation Nr: 1755026	
Decision Date: 11/30/17    Archive Date: 12/07/17

DOCKET NO.  11-06 140	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUES

1.  Entitlement to a disability rating in excess of 20 percent for traumatic arthritis, lower thoracic and lumbar spine, for the period from May 20, 2010 to October 25, 2014, on an extraschedular basis.

2.  Entitlement to a disability rating in excess of 40 percent for traumatic arthritis, lower thoracic and lumbar spine, for the period beginning October 25, 2014, on an extraschedular basis.


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney


WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

Matthew Schlickenmaier, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1962 to February 1965 and from October 1981 to March 1994.

This case initially came before the Board of Veterans' Appeals (Board) on appeal of rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.

The Veteran testified before the undersigned at a February 2015 Video Conference hearing.  The hearing transcript is of record.

In an April 2015 decision, the Board, in pertinent part, denied the Veteran's claims for a disability rating in excess of 20 percent for traumatic arthritis, lower thoracic and lumbar spine for the period beginning May 20, 2010 and ending October 25, 2014.  The Board also granted a rating of 40 percent for traumatic arthritis, lower thoracic and lumbar spine, for the period beginning October 25, 2014.

The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  Pursuant to a December 2015 Joint Motion for Partial Remand (Joint Motion), the Court vacated the Board's decision with regard to the issues of entitlement to an increased rating for traumatic arthritis, lower thoracic and lumbar spine for the period beginning May 20, 2010 and ending October 25, 2014, and entitlement to an increased rating for traumatic arthritis, lower thoracic and lumbar spine, for the period beginning October 25, 2014, and remanded the matters for compliance with the terms of the Joint Motion.

In March 2016, the Board remanded the appeal for additional development.  It is once again before the Board.

The Board notes that a number of other issues, to include the issue of entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU), have been appealed; however, the Veterans Appeals Control and Locator System shows that these issues are currently being processed by the RO and have not yet been transferred to the Board.  Accordingly, at this juncture, the Board will address only the issues listed above.

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into account the existence of these electronic records.


FINDINGS OF FACT

1.  Pursuant to the March 2016 Board remand and the provisions of 38 C.F.R. § 3.321(b)(1) (2017), the Director of the Compensation Service denied entitlement to an extraschedular ratings for traumatic arthritis of the lower thoracic and lumbar spine.

2.  The Veteran's traumatic arthritis of the lower thoracic and lumbar spine does not present, and has not been shown to combine with other service-connected disabilities to present, such an exceptional or unusual disability picture that renders the available schedular evaluations inadequate.


CONCLUSIONS OF LAW

1.  From May 20, 2010 to October 25, 2014, the criteria for an extraschedular rating in excess of 20 percent for traumatic arthritis, lower thoracic and lumbar spine, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.71a, Diagnostic Codes 5235 to 5243 (2017).

2.  Beginning October 25, 2014, the criteria for a rating in excess of 40 percent for traumatic arthritis, lower thoracic and lumbar spine, have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321(b)(1), 4.71a, Diagnostic Codes 5235 to 5243.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  In June 2010, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations.  There is no evidence that additional records have yet to be requested, or that additional examinations are in order.  The Board acknowledges that in November 2017, the Veteran underwent VA examinations which evaluated, inter alia, his lumbar spine disorder.  The Board has reviewed these examinations and finds that the evidence, as it relates to the issue of entitlement to an extraschedular evaluation, is essentially redundant.  Therefore, rather than further delay adjudication of the Veteran's appeal, the Board will proceed with adjudication of the issues presently before the Board.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the veteran."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434   (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law").  Finally, as noted above, in March 2016, the Board remanded the appeal for the RO to refer the above issues to the Director of Compensation Service for consideration of extraschedular evaluations.  As discussed below, this was accomplished in February 2017.  Accordingly, there has been substantial compliance with the prior remand directive.  Stegall v. West, 11 Vet. App. 268 (1998).

Legal Principles and Analysis

Initially, the Board notes that there are inconsistencies regarding the time period vacated pursuant to the Joint Motion and therefore it is somewhat unclear to the Board what time period is currently on appeal.  In this regard, although the April 2015 Board decision denied entitlement to a rating in excess of 20 percent for the period from May 20, 2010 to October 25, 2014, and in excess of 40 percent from October 25, 2014, in the March 2016 remand, the Board listed the issues on appeal as, inter alia, entitlement to extraschedular ratings "for the period from May 20, 2014 [sic] to October 25, 2014," thus indicating that there was only a period of approximately five months where the Veteran requested an extraschedular rating in excess of 20 percent.  Significantly, the March 2016 Board remand followed the explicit terms of the Joint Motion which states that the parties to the Joint Motion "respectfully move the Court to set aside that portion of the April 14, 2015, decision of the Board...that denied Appellant's claim for benefits based on entitlement to a disability rating in excess of 20 percent for traumatic arthritis lower thoracic and lumbar spine, for the period from May 20, 2014 [sic], to October 25, 2014."  Subsequently, however, the Joint Motion addressed evidence dated prior to May 2014 and concluded by requesting that the Court vacate, inter alia, the April 2015 Board decision that "denied an increased rating greater than 20 percent for the back disability prior to October 25, 2014 [emphasis added]."  In sum, it appears that the parties to the Joint Motion intended to have the Court vacate the denial of a higher rating for the spine for the period beginning May 20, 2010 (i.e., not beginning May 20, 2014) and, indeed, the RO's development of these issues, to include the Advisory Opinion from the Director of Compensation Service and a September 2017 supplemental statement of the case, addressed evidence as though the period on appeal began on May 20, 2010.  Although the Board is without authority to question the explicit terms of an order from the Court, to afford the Veteran every opportunity under the law, in this case, the Board will treat the period on appeal as beginning on May 20, 2010.

Turning to the merits of the case, when indicated by the evidence of record, the Board will consider whether referral for any extraschedular evaluation is warranted.  The question of an extraschedular rating is a component of a claim for an increased rating.  Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Under the provisions of 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation Service is authorized to approve an extraschedular evaluation if a 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).

In March 2016, the Board remanded the issue of entitlement to an extraschedular rating for traumatic arthritis of the lower thoracic and lumbar spine for referral to the Director of the Compensation Service.  The issue was referred pursuant to the Joint Motion, which found that the Board's April 2015 decision failed to address whether the Veteran's symptoms of constant use of a cane and brace for locomotion, abnormal gait, use of a walker, and flare-ups, warranted referral for consideration of an extraschedular rating.

A February 2017 Advisory Opinion from the Director of Compensation Service stated that the evidence failed to show an unusual or exceptional disability pattern that would render the regular rating criteria inadequate and it did not show marked interference with work or frequent hospitalization.  The opinion also noted that the rating schedule offered a variety of options for additional functional disability by analogy pursuant to 38 C.F.R. § 4.20 (2017), and therefore entitlement to extraschedular evaluations were not warranted.

Because the Director of Compensation Service determined that extraschedular evaluations were not warranted, the Board now has jurisdiction to decide the question of entitlement to an extraschedular rating the merits.  See Kuppamala v. McDonald, 27 Vet. App. 447 (2015); Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009).  The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence.  See Wages v. McDonald, 27 Vet. App. 233, 239 (2015).

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2017).

The Veteran's traumatic arthritis of the lower thoracic and lumbar spine has been rated as 20 percent disabling from May 20, 2010 to October 25, 2014 pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5242 applicable to arthritis of the spine.  The disability has been rated as 40 percent disabling from October 25, 2014 pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5237 applicable to arthritis of the spine and lumbosacral strain.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243).  Under the General Rating Formula, a 20 percent evaluation is appropriate where there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a.

Alternatively, where, as here, there is intervertebral disc syndrome, the spine may be evaluated under Diagnostic Code 5243 based on incapacitating episodes.  Under Diagnostic Code 5243, a 20 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least two weeks but less than four weeks during the past 12 months.  A 40 percent disability rating is assigned when there is intervertebral disc syndrome with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months.  A 60 percent disability rating is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a.  An "incapacitating episode" is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that required bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a.

The Veteran primarily contends that symptoms of constant use of a cane and brace for locomotion, abnormal gait, use of a walker, and flare-ups which require him to stop all physical activity, warrant an extraschedular rating.  The Joint Motion specifically observed that a June 2010 VA examiner noted that the Veteran suffered from flare-ups which required him to stop all physical activity; a September 2011 VA examiner noted the Veteran's constant use of a cane and brace for locomotion, and that the Veteran had an abnormal gait and noted that the Veteran's back disability impacted his ability to work; and an October 2014 VA examiner noted that the Veteran required the regular use of a cane and constant use of a walker for ambulation, and that he had experienced incapacitating episodes.  In August 2016, the representative submitted a medical opinion from a private examiner who opined that the currently assigned ratings do not take into account the fact that the Veteran has had to use a back brace, and either a cane or walker, and because it does not take into account the effect of this on his ability to work.

After reviewing the evidence, the Board finds the Veteran's symptoms associated with traumatic arthritis of the lower thoracic and lumbar spine are either contemplated by the rating criteria or, if not specifically listed with the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, are not outside of the governing norms such that the application of the regular schedular standards are rendered impractical.  See 38 C.F.R. § 3.321(b)(1).

From May 20, 2010 to October 25, 2014, although the Veteran did not meet the criteria for a 20 percent rating based on limitation of motion alone, a 20 percent rating was assigned based on muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  Hence, during this period, the Veteran's abnormal gait is specifically contemplated in the rating criteria.  See 38 C.F.R. § 4.71a, General Rating Formula.  Although the use of a cane and brace for locomotion is not specifically listed in the rating criteria, the Board finds that it still falls within the type of symptoms contemplated by the rating schedule.  For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011).  The schedular criteria for musculoskeletal disabilities therefore contemplate a wide variety of manifestations of functional loss, which includes impeded motion and motion which is not smooth, but is labored or irregular.  The functional loss in this case does not fall outside the schedular criteria or outside of "governing norms."  As to flare-ups, where, as here, the diagnostic criteria provide for a rating based on loss of range of motion, determinations for functional loss may be based on symptoms such as pain on use and flare-ups, as well as other factors such as weakness, excess fatigability, or incoordination.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59.  In April 2015, the Board acknowledged that the Veteran had experienced flare-ups but found that any resulting functional loss was already contemplated in the assigned 20 percent evaluation.  To the extent the Veteran now takes issue with the Board's determination that the flare-ups were not so severe as to warrant a higher rating, this amounts to a dispute regarding the application of the schedular criteria - an issue which is not presently before the Board.  Finally, the fact that this service-connected disability has affected his occupational functioning is contemplated in the schedular criteria.  VA rating criteria are designed to be "adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability."  38 C.F.R. § 4.1.

Beginning, October 25, 2014, although the Veteran did not meet the criteria for a rating in excess of 20 percent based on limitation of motion alone, a 40 percent rating was assigned based on the Veteran having suffered incapacitating episodes with a total duration of at least four weeks but less than six weeks during the previous twelve months.  In assigning this rating, the Board noted that although the Veteran had experienced functional loss due to weakened movement, instability, excess fatigability, pain on movement, disturbance of locomotion, and lack of endurance, because the next higher rating under the General Rating Formula required ankylosis, the provisions of 38 C.F.R. §§ 4.40, 4.45 were not for application.  See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).  Hence, during this period, the Veteran's incapacitating episodes were specifically contemplated in the rating criteria.  See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  As above, although the use of a cane or a walker is not specifically listed in the rating criteria, such symptoms fall within the type contemplated by the rating schedule, which contemplates functional loss manifested by the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  38 C.F.R. § 4.40; Mitchell, 25 Vet. App. at 37.  In this case, although the Board did not consider whether additional compensation based on functional loss was warranted because the next higher rating would have required ankylosis, this does not imply that symptoms of using a cane or a walker are not contemplated by the rating criteria.  Finally, as above, the fact that this service-connected disability affected his occupational functioning is also contemplated in the schedular criteria since it is designed to provide compensation for loss of working time proportionate to the severity of the disorder.  38 C.F.R. § 4.1.

In sum, the functional loss in this case does not fall outside the schedular criteria or outside of "governing norms."  There is no evidence of any further impairment outside of the norm for these disorders or which would not be contemplated by the rating criteria.

Finally, the Veteran is also service-connected for left and right lower extremity radiculopathy, a cervical spine disorder, left and right knee disabilities, painful scar of the lumbar spine, linear scar of the lumbar spine, status post excision pilonidal cyst, bilateral hearing loss, tinnitus, and surgical scar of the cervical spine.  As discussed above, however, the symptoms of the Veteran's lumbar spine disability do not fall outside the scope of those symptoms already contemplated in the rating criteria.  Hence, to the extent any of these symptoms are the result of other service-connected disabilities, these too are contemplated by the rating criteria; there is otherwise no evidence of any "combined effects" resulting in additional symptoms.  As such, there is no basis to assign an extraschedular rating pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Moreover, as noted in the introduction, the combined effects of his service-connected disabilities on his ability to be employed is being contemplated in the context of his pending TDIU claim.

As the Veteran's symptoms are either the type of symptoms explicitly contemplated by the rating schedule or are within the governing norms and fail to present an exceptional or unusual disability picture, the assigned schedular ratings of 20 percent from May 20, 2010 and 40 percent from October 25, 2014 for service-connected arthritis of the lower thoracic and lumbar spine are adequate.  Therefore, the assignment of extraschedular disability ratings is not warranted.

In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim, the doctrine is not for application.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to a disability rating in excess of 20 percent for traumatic arthritis, lower thoracic and lumbar spine, for the period from May 20, 2010 to October 25, 2014, on an extraschedular basis is denied.

Entitlement to a disability rating in excess of 40 percent for traumatic arthritis, lower thoracic and lumbar spine, for the period beginning October 25, 2014, on an extraschedular basis is denied.




____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs