Citation Nr: 18147177 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 09-45 445 DATE: November 2, 2018 ORDER Entitlement to an extraschedular rating in excess of 20 percent under 38 C.F.R. § 3.321(b)(1) for limitation of motion in the spine related to a spinal cord stimulator implant is denied. FINDING OF FACT 1. Throughout the appeal period, the Veteran’s limitation of motion in the spine related to a spinal cord stimulator implant has more nearly approximated limitation in flexion to between 30 and 60 degrees. 2. The Veteran’s impairment and functional limitations caused by his limitation of motion in the spine related to a spinal cord stimulator implant is contemplated by the 20 percent extraschedular rating assigned. CONCLUSION OF LAW The criteria for an initial rating in excess of 20 percent for limitation of motion in the spine related to a spinal cord stimulator implant on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b), 4.1, 4.3, 4.7, 4.14, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237, 4.124a, DC 8530 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1980 to June 2008. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the appellant, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. The Board finds that evidence of record indicates that the duty to notify has been satisfied. 38 U.S.C. §§ 5100, 5102, 5103, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). The Board also finds that the duty to assist has been satisfied. VA has made every reasonable effort to obtain all records relevant to the Veteran’s claim, and has fully complied with the Board’s remand directives from September 2017. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The information and evidence that has been associated with the claims file includes VA treatment records and examinations, and lay statements and testimony. The Board finds the medical examinations of record are adequate to resolve the increased rating claim decided on appeal. The Board finds these examinations, in combination with the treatment records associated with the claims file, to be comprehensive and sufficient in addressing the severity of the Veteran’s symptoms and resulting functional impairment caused by the Veteran’s limitation of motion in the spine related to his spinal cord stimulator implant during the appeal period. In this regard, it is noted that these examinations were provided following review of the claims file, physical examination of the Veteran, and interview of the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not identified any outstanding records that are relevant to his limitation of motion in the spine related to his spinal cord stimulator implant. The Board finds that the duty to assist has, therefore, been satisfied and there is no reasonable possibility that further assistance would be capable of substantiating the claims decided on appeal. 38 U.S.C. § 5103A (a)(2) (2012). Entitlement to an extraschedular rating in excess of 20 percent for limitation of motion in the spine related to a spinal cord stimulator implant Generally, disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In exceptional cases an extraschedular rating may be provided where the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. 38 C.F.R. § 3.321 (2016); see also Thun v. Peake, 22 Vet. App. 111 (2008). In December 2008, the Veteran submitted a claim for bilateral ilioinguinal neuralgia, secondary to the repair of his bilateral inguinal hernias. The Veteran reported that he had decreased sensation along the ilioinguinal nerve since surgery in 2005, increased pain, and that he underwent surgery to implant a spinal cord stimulator in December 2008. In a July 2010 rating decision, the Veteran was granted a 10 percent rating for left ilioinguinal neuralgia. The Veteran appealed this decision stating that a higher rating was warranted. In November 2013, the Board denied a higher rating for left ilioinguinal neuralgia on a schedular basis and remanded entitlement to a higher rating on an extraschedular basis. In September 2017, the Board granted entitlement to a 20 percent rating, but not higher than a 20 percent rating, for left ilioinguinal neuralgia on an extraschedular basis. These decisions became final. See 38 C.F.R. § 20.1100. The September 2017 Board decision, however, also bifurcated and remanded entitlement to an extraschedular rating for limitation of motion in the spine related to a spinal cord stimulator implant. Bifurcation of a claim generally is within the Secretary’s discretion. See Tyrues v. Shinseki, 23 Vet. App. 166, 176 (2009). In an April 2018 rating decision, the Regional Office (RO) granted separate service connection for thoracolumbar limited motion and assigned a 20 percent rating, effective the date of the Veteran’s surgery. As the Board previously denied entitlement to an extraschedular rating in excess of 20 percent for left ilioinguinal neuralgia on a schedular and extraschedular basis, the Board’s decision will only address whether entitlement to a higher rating is warranted based upon the bifurcated issue of limitation of motion in the spine related to a spinal cord stimulator implant. The Veteran’s 20 percent rating for limitation of motion of the thoracolumbar spine was based upon comparison to the rating criteria of DC 5237. Under DC 5237, a lumbosacral strain will be considered under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula warrants a 20 percent evaluation where forward flexion of the lumbar spine is limited between 30 and 60 degrees, or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or muscle spasms or guarding are severe enough to result in an abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, DC 5237 (2017). A 40 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5237 (2017). The criteria under the General Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a, DC 5235-5243 General Formula (2017). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Note 2 and Plate V. When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017). At his November 2016 hearing, the Veteran testified as to the difficulties related to the spinal stimulator implant. He reported that the stimulator affected his everyday activities, to include how he had to sit, if he leaned back, and caused him to be unable to sleep in certain positions. He also indicated that it impacted his employment in that he could not participate in group activities. (While the Veteran also reported pain in the groin area and burning pain at the site of the implant, the Board notes that to the extent that the Veteran’s condition causes symptoms related to the ilioinguinal nerve, the Board finds that these symptoms are contemplated by his extraschedular rating for ilioinguinal neuralgia and cannot be considered in his rating based upon limitation of motion without causing impermissible pyramiding.) See 38 C.F.R. § 4.14 (2017). In March 2006, the Veteran was seen at a pain clinic related to his interest in spinal cord stimulator implantation. The Veteran was advised that he would need to avoid bending greater than 60 degrees indefinitely to prevent movement of the device after it was implanted. In the Veteran’s May 2013 peripheral nerves examination, he reported that the battery generator in the left buttock area is sensitive to sitting or lying in certain positions. He also reported that keeping the stimulator pack charged and with him creates a constant minor burden. In March 2017, the Veteran again reported that the implant affects his ability to sit down or lay down for extensive periods of time. He also stated that the condition inhibits him from sitting in the same place for extended periods. He stated that he constantly needs to shift his weight while he is seated due to pain and discomfort. In February 2018, the Veteran was provided a VA examination that specifically looked at the functional impairment related to the Veteran’s low back. The Veteran again reported pain with sitting and bending forward due to the device. The Veteran’s forward flexion of the low back was reported to be from 0 to 90 degrees and extension was from 0 to 30 degrees. No additional limitations were reported after observed repetitive use or due to flare-ups. The examiner stated that the Veteran’s condition caused interference with sitting, did not result in ankylosis, and did not result in prescribed bed rest. The examiner stated that the Veteran’s condition affects his ability to work because he needs to frequently change his position when sitting to remain comfortable. VA treatment records and private treatment records do not indicate that the Veteran suffers from limitation in forward flexion to less than 30 degrees, result in ankylosis of the lumbar spine, or that he has been prescribed bed rest for more than four weeks in a 12 month period. While the Board recognizes that the Veteran’s spinal cord stimulator implant causes the Veteran functional impairment, the Board does not find that this impairment warrants an extraschedular rating in excess of the 20 percent rating assigned for thoracolumbar limitation of motion. The Board has considered the arguments of the Veteran’s representative provided in October 2018 that a rating in excess of 20 percent is warranted because the current rating does not contemplate the complications of the Veteran’s implant or the maintenance of it and how that adversely effects the Veteran in his daily life and in completing his work to an acceptable level that affords him the ability to compete for higher positions and raises at his job. The Board, however, finds that these complications are considered in the Veteran’s current 20 percent extraschedular rating assigned based upon limitation of motion of his low back. While the rating criteria for the General Formula of the Spine does not consider the complications of the Veteran’s implant or the maintenance of it, the Board finds that the Veteran’s current rating considers both the limitation of the low back as compared to a schedular rating under the General Formula (DC 5237) and the associated functional impairments, including the complications associated with the Veteran’s implant. Because the nature of extraschedular consideration requires that the disability picture be unique and not contemplated by the rating schedule, there logically is no guidance as to the specific rating that should be assigned in any particular case. Kuppamala v. McDonald, 27 Vet. App. 447, 443, n. 7 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 97 (1996). For the foregoing reasons, the Board finds that the preponderance of the evidence weighs against the Veteran’s claim for an extraschedular rating in excess of 20 percent for limitation of motion in the spine related to a spinal cord stimulator implant. As the preponderance of the evidence is against the Veteran’s claim, the benefit-of- the-doubt doctrine is not applicable. 38 U.S.C. § 5107 (b) (2012); see 38 C.F.R. § 4.3 (2017). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P.M. Johnson, Counsel