Citation Nr: 1808707 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 08-32 776 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an extraschedular rating for service-connected cervical myelopathy and cervical spondylosis with stenosis at C3-4, 4-5, and 6-7 (cervical spine disability). REPRESENTATION Veteran represented by: Robert Chisolm, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Smith, Associate Counsel INTRODUCTION The Veteran served honorably on active duty in the U.S. Navy from May 1968 until April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 Decision Review Officer (DRO) decision by the Department of Veterans Affairs (VA) Regional Office in Nashville, Tennessee. In July 2011, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding is of record. This matter was previously remanded by the Board in September 2011, August 2014, March 2016, and July 2017. In March 2016, the Board denied entitlement to higher schedular ratings for the service-connected cervical spine disability. The issue of entitlement to an extraschedular rating for the Veteran's service-connected cervical spine disability was remanded for referral to the Director of Compensation and Pension Service. The Veteran appealed the March 2016 denial of a higher schedular rating to the United States Court of Appeals for Veterans Claims (Court), which in turn granted the parties' Joint Motion for Remand (JMR) in a November 2016 Order. Specifically, the Court agreed that the Board erred in failing to adjudicate a claim for a total disability rating based on individual unemployability as a result of service-connected disability (TDIU) as part and parcel of the Veteran's increased rating claim. The July 2017 Board decision granted entitlement to a TDIU effective April 29, 2010. The issue of entitlement to an extraschedular TDIU prior to April 29, 2010 was remanded for referral to the Director of Compensation and Pension Service; and the issue of entitlement to an extraschedular rating for service-connected cervical spine disability was remanded as inextricably intertwined with the other claim on appeal. Based upon the findings of the Director of Compensation and Pension, a July 2017 rating decision granted entitlement to a TDIU effective April 11, 2002, the date the Veteran was service-connected for a cervical spine disability and PTSD with major depression. The July 2017 decision is a full grant as to the issue of entitlement to an extraschedular TDIU, and the Board has limited its scope accordingly. FINDING OF FACT Marked interference with employment due to the Veteran's service-connected cervical myelopathy and cervical spondylosis with stenosis at C3-4, 4-5, and 6-7 is already adequately contemplated by the rating schedule. CONCLUSION OF LAW The criteria for entitlement to an extraschedular rating for the service-connected cervical myelopathy and cervical spondylosis with stenosis at C3-4, 4-5, and 6-7 are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist VA's duty to notify was satisfied by letters dated February 2005 and May 2008. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in July 2011. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. The Board also finds that there has been compliance with the prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998). Indeed, the claim for an extraschedular TDIU for the period prior to April 29, 2010 was referred to the Director of Compensation and Pension Service for consideration, and the remaining issue on appeal was readjudicated in the July 2017 supplemental statement of the case. Accordingly, the Board will proceed to address the merits of the claim. Extraschedular Ratings The Veteran asserts that his cervical spine disability caused symptoms that resulted in an exceptional or unusual disability picture, to include marked interference with employment, that rendered the application of the rating schedule inadequate. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the Veteran's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Thun, 22 Vet. App. 111; VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, VA must determine whether the Veteran's exceptional disability picture exhibits other related factors, such as those marked interference with employment and frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). In this case, there is not such an exceptional disability picture that the assigned evaluations for the service-connected cervical spine disability are inadequate. Prior to April 29, 2010 the Veteran was awarded an extraschedular TDIU based on the combined effects of his cervical spine disability and posttraumatic stress disorder with depression. On and after April 29, 2010, the Veteran has been in receipt of a schedular TDIU based solely on his cervical spine disability. To the extent that the Veteran's cervical spine disability has resulted in marked interference with employment, the Veteran is already being compensated by the extraschedular and schedular TDIU which have been assigned for the entire appeal period. The Veteran has been found to be unemployable in part and then in whole due to his cervical spine disability. Thus, any interference with employment due to the service-connected cervical spine disability is contemplated by the assigned total rating. Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321(b)(1). As such, the Board concludes that referral for extraschedular consideration is not warranted here. ORDER Entitlement to an extraschedular rating for the service-connected cervical myelopathy and cervical spondylosis with stenosis at C3-4, 4-5, and 6-7 is denied. ____________________________________________ THERESA M. CATINO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs