Citation Nr: 18142935 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 09-48 338 DATE: October 17, 2018 ORDER An extraschedular rating in excess of 20 percent for loss of motion of the lumbar spine associated with Reiter’s syndrome is denied. An extraschedular rating in excess of 10 percent for loss of motion of the right hip associated with Reiter’s syndrome is denied. An extraschedular rating in excess of 10 percent for loss of motion of the left hip associated with Reiter’s syndrome is denied. An extraschedular rating in excess of 10 percent for loss of motion of the right knee associated with Reiter’s syndrome is denied. An extraschedular rating in excess of 10 percent for loss of motion of the left knee associated with Reiter’s syndrome is denied. An extraschedular rating in excess of 10 percent for loss of motion of the right ankle associated with Reiter’s syndrome is denied. An extraschedular rating in excess of 10 percent for loss of motion of the left ankle associated with Reiter’s syndrome is denied. FINDINGS OF FACT 1. The Veteran served on active duty from April 1977 to February 1979; he has been 100 percent disabled since July 2008. 2. The manifestations of the loss of motion of the lumbar spine, right hip, left hip, right knee, left knee, right ankle, and left ankle associated with Reiter’s syndrome is contemplated by the rating criteria; the use of assistive devices to manage limitation of motion does not present an exceptional or unusual disability picture which would render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. Extraschedular referral for loss of motion of the lumbar spine associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code (DC) 5009-5242. 2. Extraschedular referral for loss of motion of the right hip associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, DC 5252-5219. 3. Extraschedular referral for loss of motion of the left hip associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, DC 5252-5219. 4. Extraschedular referral for loss of motion of the right knee associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, DC 5003-5260. 5. Extraschedular referral for loss of motion of the left knee associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, DC 5003-5260. 6. Extraschedular referral for loss of motion of the right ankle associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, DC 5009-5271. 7. Extraschedular referral for loss of motion of the left ankle associated with Reiter’s syndrome is not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.71a, DC 5009-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2011 the Veteran testified at a videoconference hearing held before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2017, the Board granted separate ratings for individual manifestations of Reiter’s syndrome (limitation of motion of the following: lumbar spine, cervical spine, hips, knees, ankles, wrists, hands, and elbows, as well as radiculopathy of all four extremities), which had been previously rated as a singular disability (Reiter’s syndrome was previously rated at a single 40 percent). The grants included a 20 percent rating for limitation of motion of the lumbar spine, a 10 percent rating for limitation of motion of the right hip, a 10 percent rating for limitation of motion of the left hip, a 10 percent rating for limitation of motion of the right knee, a 10 percent rating for limitation of motion of the left knee, a 10 percent rating for limitation of motion of the right ankles, and a 10 percent rating for limitation of motion of the left ankle. The Veteran appealed the August 2017 Board decision to the extent that the Board did not address whether the Veteran was entitled to extraschedular ratings for his service-connected loss of motion of the lumbar spine, right hip, left hip, right knee, left knee, right ankle, and left ankle due to Reiter’s syndrome. The April 2018 Joint Motion for Partial Remand (JMPR) specifically indicated that the schedular ratings assigned for all disabilities associated with Reiter’s syndrome were not to be disturbed. It was also specifically noted that the ratings for limitation of motion of the cervical spine, elbows, wrists and hands, and radiculopathy of the four extremities should not be disturbed/were not being appealed. 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 evaluations for the service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran’s level of disability and symptomatology and it is found inadequate, the Board must determine whether the claimant’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 a 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 the Compensation Service to determine whether the Veteran’s disability picture requires the assignment of an extraschedular rating. The recent amendment to 38 C.F.R. § 3.321(b)(1) removes the phrase “upon field station submission,” apparently eliminating the concept of extraschedular referral. See Extra-Schedular Evaluations for Individual Disabilities, 82 Fed. Reg. 57,830, 57,833 (Dec. 8, 2017) (“We agree that the ROs should make these fact-intensive decisions in the first instance, and we have therefore revised the rule by eliminating the phrase ‘upon field submission’ and the word ‘referred’”). The JMPR specifically indicated that the use of a cane, brace or other assistive devices reasonably raised the question of whether extraschedular consideration was warranted for the Veteran’s service-connected limitation of motion of the lumbar spine, hips, knees, and ankles. However, the use of a cane, brace, or other assistive device, in and of itself, is not a symptom. It is way of managing the symptom of lost motor function. It may indicate the severity of that symptom, but it does not indicate any additional functional loss from the underlying disability. Moreover, the Veteran has not indicated that there is any additional functional loss from use of the cane or brace or any other assistive device. The medical evidence includes November 2013 VA examination reports which noted that the Veteran used a cane on and off. A March 2014 VA treatment record reported the use of a cane and knee brace at times. Several April 2016 VA examination reports (lumbar spine, hips, knees, and ankles) note that he used a cane to steady his gait. The lumbar spine and hips examinations related that use of the cane was constant. The lumbar spine examination also indicated that the Veteran woke up with a stiffness in his lower back and that he got a sharp intermittent pain in his back, rated at 4/10. He could not run, jump or ambulate for prolonged periods. The VA knees and ankles examination reports note that the Veteran woke up with a dull pain in both of his knees and ankles; he bot swelling intermittently in both knees and ankles at least once a week. It was not indicated that he used a knee brace. He did not use ankle braces. The hips examination report stated that he woke up with sharp pain in the hips with intermittent sharp radiating pain. He denied flare-ups of all disabilities and after repetitive range of motion testing, ranges of motion were not additionally limited. It is uncontroverted that the Veteran used assistive devices such as a cane and knee brace during the course of this appeal. However, the service-connected lumbar spine, bilateral hip, bilateral knee, and bilateral ankle limitation of motion disabilities are not so unique or unusual as to require referral for extraschedular consideration. Specifically, the use of a cane or brace would be expected if a person was experiencing significant pain or locking in a joint of the lower extremity or back pain. That is, use of such assistive device(s) is not a unique or unusual result of lumbar spine, bilateral hip, bilateral knee, or bilateral ankles disabilities. Moreover, as noted above, the use of an assistive device such as a brace or cane is not a “symptom” of the Veteran’s lumbar spine, hip, knee or ankle disability; rather, it is the result of symptoms such as pain. In other words, he used a cane because of pain in the ankles, knees, hips, and lumbar spine in order to steady his gait. Importantly, however, pain is a symptom that is specifically contemplated by the schedular rating criteria for all disabilities on appeal. The same is true with limitations as to walking, and other motion. The medical evidence reflects that the Veteran had difficulty with stairs and prolonged walking because of increased pain. Here, there are higher schedular ratings that would take into account increased pain/more limited range of motion, instability, and other symptoms (such as ankylosis, nonunion or malunion of the tibia and fibula, impairment of the femur, flail joint of the hip). As such, even though the Veteran used a cane and at times knee braces and has trouble with walking at times (and cannot run, jump or walk for prolonged periods), the schedular rating criteria for each disability reasonably describe his symptomatology. Consequently, the symptoms associated with these disabilities are not shown to cause any impairment that is not already contemplated by the rating criteria. Therefore, referral for consideration for extraschedular ratings is not warranted. The appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not   required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Redman, Counsel