Citation Nr: 18146422 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 04-11 973A DATE: October 31, 2018 ORDER Entitlement to a rating in excess of 40 percent for a low back disability, on an extraschedular basis under 38 C.F.R. § 3.321(b)(1), is denied. FINDING OF FACT The Veteran’s service-connected low back disability manifestations and related functional impairment are reasonably described and contemplated by the rating criteria under which they have been evaluated. CONCLUSION OF LAW A rating in excess of 40 percent for a low back disability, on an extraschedular basis, is not warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 3.321(b)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from July 1977 to March 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2003 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied a rating higher than 40 percent for a low back disability (currently characterized as lumbosacral strain with spondylolysis L5-S1 and spondylolisthesis). Hearings were held before a Decision Review Officer at the RO (in August 2005), and before the undersigned (in May 2007). In September 2007, the Board remanded the case to the RO for further development of the low back disability claim. An April 2008 Board decision denied a rating higher than 40 percent for a low back disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC). In an April 2009 Order, the CAVC granted an April 2009 Joint Motion for Remand of the parties, thereby vacating the Board’s decision with respect to the issue of a higher rating for a low back disability and remanding the matter to the Board for action consistent with the terms of the Joint Motion. A July 2010 Board decision denied a schedular rating higher than 40 percent for a low back disability and remanded the case to the RO for further development on the issue of a rating in excess of 40 percent for a low back disability on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). In September 2014, the Board remanded the case to the RO for additional development of the issue, to include a referred issue of entitlement to a rating in excess of 40 percent for a low back disability (on a schedular basis), which the RO denied in a July 2017 rating decision. An October 2017 Board decision denied a rating in excess of 40 percent for a low back disability on an extraschedular basis under 38 C.F.R. § 3.321(b)(1). The Veteran appealed that decision to the CAVC. In a July 2018 Order, the CAVC granted a July 2018 Joint Motion for Remand of the parties, thereby vacating the Board’s decision with respect to the issue of a higher rating for a low back disability on an extraschedular basis and remanding the matter to the Board for action consistent with the terms of the Joint Motion. The Board notes that four additional issues were previously appealed to the Board and addressed in the October 2017 remand (entitlement to service connection for upper back and neck disabilities and a psychiatric disability, all including on a secondary basis, and entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU)). However, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), which created a new framework for veterans dissatisfied with VA’s decision on their claim(s) to seek review. In July 2018, the Veteran elected to participate in VA’s test program RAMP, the Rapid Appeals Modernization Program, wherein she has withdrawn the four additional claims pending on appeal and has chosen to have them proceed under the new process described in the AMA. Therefore, they are not now in appellate status before the Board. Entitlement to a rating in excess of 40 percent for a low back disability, on an extraschedular basis under 3.321(b)(1) Governing law provides that ratings shall be based as far as practicable, upon the average impairment of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation 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). Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. If the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Id. If the veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. Id. An October 2017 Board decision denied a rating higher than 40 percent for the Veteran’s low back disability on an extraschedular basis, and the Veteran appealed the decision to the CAVC. The CAVC granted a Joint Motion of the parties, thereby vacating the Board’s decision. The parties in the Joint Motion determined that the Board erred by not providing adequate reasons or bases for denying the claim. First, it was noted that the Board’s conclusion, which was supported by a finding that the Rating Schedule provided for higher ratings for more severe symptoms related to the back disability, was not in compliance with the holding in King v. Shulkin, 29 Vet. App. 174, 181 (2017). The King case, however, was issued in December 2017, and therefore came after the Board’s decision. Second, the parties noted that in discussing the Veteran’s employment history, the Board failed to apply the proper standard, as set forth in Thun, because it appeared that the Board seemed to require unemployability rather than determining whether the Veteran’s low back disability caused marked interference with employment. As discussed below, the Board finds that consideration of marked interference with employment is not even necessary under Thun, because the evaluation criteria under the Rating Schedule wholly contemplates the Veteran’s symptoms and disability level (which was also the Board’s finding in October 2017). For the period considered in this appeal, the Veteran’s service-connected low back disability (lumbosacral strain with spondylolysis L5-S1 and spondylolisthesis) has been rated as 40 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes (Codes) 5293-5292, as reflected in RO rating decision codesheets. However, as is evident in the Board’s unappealed decision of July 2010 and the RO’s unappealed July 2017 rating decision, consideration was also given to the applicable criteria after they were revised, effective September 26, 2003, in evaluating the low back disability. Such codes include 38 C.F.R. § 4.71a, Codes 5235-5243. In September 2014, the Board remanded the case for a VA neurological examination to ascertain whether the Veteran’s low back disability is manifested by any objective neurologic manifestations. Subsequently, a VA examiner concluded that the Veteran had peripheral neuropathy in the lower extremities and not lumbar radiculopathy. In other words, any neurological impairment in the lower extremities was not attributed to the service-connected low back disability, and certain evaluation criteria (both before and after the revisions in September 2003) would not be for application. In December 2016, the RO referred the matter of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for the low back disability to the Director of the VA Compensation and Pension Service. The referral noted, among other things, that the Veteran had an extensive medical history to include diabetes mellitus, hypertension, hyperlipidemia, asthma, breast cancer, sleep apnea, obesity, and dysthymia (all not service-related). It was further noted she had not worked since 1992. In response in February 2017, the Director found that an extraschedular evaluation for the low back disability was not warranted for any time period considered in the appeal. The Board has considered both the decision of the Director of the VA Compensation Service and the other evidence of record, including the numerous VA examination reports of June 2003, July 2004, March 2006, October and November 2007, December 2009, April 2011, June 2013, November 2014, and May 2017, to assess the Veteran’s low back disability and its manifestations. Notably, the first part of the three-part test, as prescribed in Thun, requires the Board to consider whether the evidence presents such an exceptional disability picture that the available schedular rating for that disability is not adequate. Here, the Board finds that comparison of the Veteran’s low back disability and associated functional impairment does not show that the rating criteria are inadequate to describe her disability picture. For example, on June 2003 VA examination for her back, she complained of constant pain and that repetitive movements worsened the pain. Her back range of motion was limited by pain and stiffness. In a June 2003 statement, the Veteran described constant pain and stiffness in her low back exacerbated by weather, walking around, and performing household chores. On July 2004 VA examination, she complained of chronic low back pain and reported increasing difficulty in arising from seated positions. She also noted periodic flare-ups of pain and leg weakness on increased activity. Objectively, there was limitation of motion and 5/5 muscle strength in the lower extremities. On March 2006 VA examination, her complaints included severe stiffness, mild weakness, and moderate pain, as well as weekly flare-ups of pain after increased activity. The examiner assessed these complaints, finding limitation of motion of the thoracolumbar spine, including the effects of pain on range of motion in terms of her functional loss. At a hearing before the undersigned in May 2007, the Veteran described restrictions such as inability to lift anything heavy, difficulty walking up steps or walking without a limp, and inability to sit still due to pain. On November 2007 VA examination, there were complaints of severe low back pain radiating to her lower extremities (an October 2007 VA examiner felt the neurological symptoms were related to nonservice-connected diabetes), and flare-ups on a couple occasions sufficient to confine her to bed. Examination found complaints of tenderness over the thoracolumbar spine and objective findings of limitation of motion that were not significantly limited on repetition. The Veteran could walk on her heels and toes, and the examiner stated that although she was significantly handicapped by her low back, she was capable of performing some occupations. On December 2009 VA examination of the low back, the Veteran reported pain all the time, and flare-ups precipitated by weather changes. She was able to walk on her toes and her heels for a few steps before losing balance, and she reported that she could walk one block at most. Functionally, she was independent in transferring, grooming, cooking, feeding, and driving. Examination found tenderness and limitation of motion. Similar complaints and findings were noted on an April 2011 VA examination of the low back. She appeared with a cane and stated that she could now walk a ½ block at the most. The examiner noted that she grocery shopped (pushed cart but did not lift), dressed herself including putting on her shoes and socks, drove (but required breaks), and sat for short times (before needing a break to stretch). Based on her low back presentation of functional limitations as well as her history of not having worked since 1992 (by the Veteran’s report), the examiner found that most forms of employment would be precluded. A June 2013 VA examiner also noted the Veteran’s reports of severe pain and flare-ups with increased activity (such as bending over or lifting things). The functional assessment was very similar to that on the 2011 examination, and the examiner likewise asserted that the Veteran’s limitations with sitting, standing, walking, etc. were such that employment was precluded. A November 2014 VA examination noted that the Veteran had not worked in over 20 years due to “back conditions” (he did not elaborate, as the record indicates the Veteran had cervical, thoracic, and lumbosacral spine disabilities) and together with her peripheral neuropathy it was more unlikely she would be able to work in a capacity where manual labor was required, or where standing, walking, or sitting over an hour was required. A May 2017 VA examination report reflects the Veteran’s reports of worsening low back pain with the passage of time. She reported difficulty with prolonged walking and standing. Objectively, there was limitation of motion, normal strength and sensation in the lower extremities, and a straight leg raising test was negative. She continued to use a cane regularly, due to her back condition. The examiner remarked that her low back disability impacted on her ability to work due to her difficulty with prolonged walking and standing. The Veteran’s complaints and findings were similarly reflected in VA and private outpatient treatment records. Social Security Administration records reflect that she was found to be disabled under SSA laws, effective in November 1997, related to multiple impairment, specifically severe musculoskeletal, cardiovascular, and psychiatric impairments, including lumbar and cervical spine disability, obesity, hypertension, depression, and anxiety. The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life including employment. See 38 C.F.R. § 4.10. Specifically, all schedular criteria are meant to take into account the average impairment in earning capacity resulting from the service-connected disability. See 38 C.F.R. § 4.1. As stated in 38 C.F.R. § 4.21, “[c]oordination of rating with impairment of function will...be expected in all instances.” The Veteran’s low back disability is rated under diagnostic codes that consider limitation of motion, pain, stiffness, aching, guarding, tenderness, and associated neurologic abnormalities, as well as the severity of such symptoms during flare-ups and repetitive use. Her complaints and the objective findings on examination not only reflect these symptoms but also are contemplated within the types of symptoms expected for her low back disability of lumbosacral strain with spondylolysis L5-S1 and spondylolisthesis. The rating schedule is designed to evaluate function under the ordinary conditions of life including employment. 38 C.F.R. § 4.10. Disability ratings of the musculoskeletal system consider pain and weakness, as well as strength, speed, coordination and endurance. 38 C.F.R. §§ 4.40, 4.45. As previously reported, the Veteran has described impaired function in activities such as prolonged walking, standing, sitting, and lifting, which become additionally disabling with repetitive use. She is also shown to have flare-ups, with resulting increased symptomatology. She has not described, and examinations have not shown, symptoms or impairment which are not already considered in the assigned schedular evaluations. Therefore, the Board finds that the symptoms that the Veteran experiences from her low back disability are contemplated by the applicable schedular criteria. This satisfies the first prong, or step, of the inquiry set forth in Thun. Where the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is adequate. That is, a referral for an extraschedular rating is not required, and the Thun inquiry ends. The fact that the RO had referred the Veteran’s case to the Director in December 2016 for extraschedular consideration, suggesting it found that the schedular evaluation was inadequate and that there were other related factors such as marked interference with employment, is not binding on the Board’s finding that the schedular evaluation adequately contemplates the Veteran’s low back symptoms and level of impairment. It is also noted that the Veteran’s claim for TDIU is still active and pending resolution. In conclusion, the Board finds that a rating in excess of 40 percent for the low back disability on an extraschedular basis is not warranted, and there is no reasonable doubt to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel