Citation Nr: 18142998
Decision Date: 10/17/18	Archive Date: 10/17/18

DOCKET NO. 07-28 537
DATE:	October 17, 2018
REMANDED
Entitlement to a disability rating in excess of 40 percent for residuals of low back strain with degenerative changes and degenerative disc disease of the lumbar spine is remanded.
REASONS FOR REMAND
Entitlement to a disability rating in excess of 40 percent for residuals of low back strain with degenerative changes and degenerative disc disease of the lumbar spine is remanded.
The Veteran served on active duty from May 1971 to August 1991. 
In March 2011 the Board of Veterans’ Appeals (Board) denied an increased rating claim for the Veteran’s low back disability.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In September 2012, the Court vacated the March 2011 decision, and remanded the case to the Board.  In June 2013 and June 2016, the Board remanded the claim for additional development.  In September 2017, the Veteran’s claim was once again denied by the Board.  The Court issued a joint motion for partial remand (JMPR) in May 2018.  Specifically, the JMPR noted that the Board did not provide an adequate statement of reasons or bases for denying the Veteran’s request for an extraschedular disability rating referral.
In the present case, the Veteran raised entitlement to extraschedular referral in his May 2016 appellate brief.  The Veteran contends that back pain resulting from his service-connected low back strain manifests in symptoms not contemplated by the rating criteria that cause marked interference with employment.  Specifically, the Veteran asserts that his low back strain causes difficulty sleeping.  The Veteran’s low back strain has been evaluated under Diagnostic Code 5237.  38 C.F.R. § 4.71a.  The Board acknowledges the Board acknowledges that the rating criteria of Diagnostic Code 5237 do not contemplate disturbances of sleep.         
The Board does not have the authority to assign an extraschedular disability rating in the first instance.  As such, the issue of entitlement to a disability rating in excess of 40 percent for residuals of a low back strain with degenerative changes and degenerative disc disease of the lumbar spine, is remanded for referral to the Director of Compensation and Pension Service (or designee) for extraschedular consideration.
In addition to the request for referral for extraschedular evaluation, in a September 2018 correspondence, the Veteran requested his claim be returned to the agency of original jurisdiction for the consideration of all newly submitted, relevant evidence.  The Board notes that VA treatment records have been added to the record since the issuance of the most recent supplemental statement of the case (SSOC) in February 2017.  These records are relevant to the Veteran’s claims.    
Accordingly, the matter is REMANDED for the following action:
1. Pursuant to the provisions of 38 C.F.R. § 4.16(b), refer to the Director of Compensation and Pension Service (or designee) the matter of the Veteran's entitlement to a disability rating in excess of 40 percent for a low back strain with degenerative changes and degenerative disc disease of the lumbar spine.
2. Consider all new and relevant evidence added to the Veteran’s claims file since the issuance of the last SSOC on February 7, 2017.   
3. After all completed development, the AOJ should then readjudicate the claim.  If the benefits sought on appeal are not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case and afforded the requisite opportunity to respond before the case is returned to the Board.
 
N. RIPPEL
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Riordan, Associate Counsel