Citation Nr: 18158522 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 10-46 884 DATE: December 18, 2018 REMANDED Entitlement to an increased rating for residuals of a retained foreign body in the neck with degenerative disc disease, currently rated 10 percent prior to September 19, 2016, and 20 percent from September 19, 2016, is remanded. Entitlement to an increased rating for lumbosacral strain, currently rated 20 percent prior to October 2, 2017, and 40 percent from October 2, 2017, is remanded. Entitlement to an increased rating for radiculopathy of the left lower extremity, currently rated 10 percent prior to October 29, 2014, 20 percent from October 29, 2014 through March 31, 2018, and 10 percent from April 1, 2018, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1983 to December 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. Jurisdiction currently resides with the RO in Winston-Salem, North Carolina. During the pendency of this appeal, the Veteran’s rating for lumbosacral strain was increased to 40 percent effective October 2, 2017. This is considered a partial grant of the issue on appeal. See AB v. Brown, 6 Vet. App. 35, 39 (1993). The Board previously remanded these matters in December 2013 and July 2016. In September 2017, the Board issued a decision denying entitlement to a rating in excess of 20 percent for a lumbosacral strain, a rating in excess of 10 percent for residuals of a retained foreign body in the neck prior to September 19, 2016, and in excess of 20 percent thereafter, and a rating in excess of 10 percent for left lower extremity neuropathy prior to October 29, 2014, and in excess of 20 percent thereafter. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The Court granted a Joint Motion for Partial Remand (JMPR) in June 2018, vacated the September 2017 Board decision in relevant part, and remanded the matters to the Board for further adjudication. In the JMPR, the parties agreed that the Board failed in the duty to assist, and had not substantially complied with the terms of the remand directives of December 2013 (see Stegall v. West, 11 Vet. App. 268, 271 (1998)), when it did not ensure that the RO requested relevant information from the Veteran’s employer that the Board had specified in the remand directives. The parties further agreed that the Board did not consider the potential applicability of 38 C.F.R. § 3.321 in connection with the Veteran’s reports of impaired sleeping due to back, cervical, and radicular pain caused by service-connected disabilities, or consider evidence of marked interference with employment caused by service-connected disabilities. In December 2013, the Board directed the RO to “obtain all identified medical records, and all employment personnel records to specifically include those related to the Veteran’s light duty assignment, his temporary disability benefits, and any absenteeism. All records should be associated with the claims file … the RO/Appeals Management Center must make two attempts for the relevant private treatment records or make a formal finding that a second request for such records would be futile….” Thereafter, VA requested information and received a response from the Veteran’s former employer. However, in the JMPR, the parties noted that the request contained a basic VA Form 21-4192, Request for Employment Information in Connection with a Claim for Disability Benefits, and did not specifically request the information sought by the Board or substantially comply with the Board’s remand order. Accordingly, the Board herein finds that the claim should be remanded so that VA may comply with the December 2013 remand directives. As necessitated by the JMPR, the Board has considered whether the Veteran’s claims may be referred for consideration of assignment of ratings on an extraschedular basis. Generally, evaluating a disability using either the corresponding or an analogous diagnostic code contained in the Rating Schedule is sufficient. However, in exceptional cases where the schedular rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321 (b); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111, 116-17 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extra-schedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating for that service-connected disability is inadequate. Second, if the schedular rating does not contemplate the claimant’s level of disability and symptomatology and 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 rate 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 Director, Compensation Service, to determine whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. The Veteran’s VA treatment records evince complaints of impaired sleep due to pain caused by service-connected back, neck, and radiculopathy disabilities, including in April 2014 and July 2016. Impaired sleep, as functional impairment, is not contemplated by the relevant diagnostic codes for the Veteran’s service-connected back and neck disabilities. See 38 C.F.R. §§ 4.71a, Diagnostic Code (DC) 5237, 4.124a, DC 8526. Additionally, there is evidence that the Veteran’s disability picture exhibits factors such as marked interference with employment. For example, a letter from the Veteran’s former supervisor, A.D., states that the Veteran’s lower back disabilities caused him to miss work, be placed on light duty, and navigate his duties with the use of a walking cane. A.D. stated that the Veteran had a crew of 5-7 men to assist him, but the Veteran’s condition continued to decline to the point where he had to give up employment. Accordingly, the Board concludes that the Veteran’s disability picture manifests functional impairment that is not adequately contemplated by the rating schedule, and there is evidence of marked interference with employment. Thus, the claims at issue on appeal should be remanded for referral to the Director, Compensation Service, to determine whether assignment of disability ratings on an extraschedular basis is appropriate. 38 C.F.R. § 3.321; Thun, 22 Vet. App. at 116-17. The Veteran receives VA treatment for the disabilities at issue on appeal; therefore, all outstanding, relevant VA treatment record should be procured. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from December 2017 to the present. 2. Contact the Veteran, and request a completed VA Form 21-4142, Authorization for Release of Information, so that VA may obtain employment information from the Veteran’s former employer, Bell Partners, Inc. Allow a sufficient time for a response. Upon receipt of any forthcoming Form 21-4142, request the Veteran’s employment information from Bell Partners, Inc., to specifically include a request for records related to the Veteran’s light duty assignment, his temporary disability benefits, and any absenteeism. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile, in which case a formal finding reflecting such determination must be produced and associated with the claims file. 3. After completion of the above, refer the claims to the Director, Compensation Service, for consideration of entitlement to an extraschedular rating(s) for the disabilities at issue, with consideration of the Veteran’s reports of impaired sleep due to his service-connected lumbosacral strain, residuals of retain foreign body in the neck with degenerative disc disease, and left lower extremity radiculopathy disabilities, interfering with his ability to work. A copy of all determinations must be included in the claims file. 4. Thereafter, review the expanded record, and readjudicate the claims at issue on appeal. If any benefit sought remains denied, furnish the Veteran and his representative with a supplemental statement of the case. After allowing an appropriate period for response, return the appeal to the Board for review. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Reed, Associate Counsel