Citation Nr: 1817334	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  12-07 495	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUE

Entitlement to an initial rating in excess of 10 percent prior to August 14, 2017 and in excess of 20 percent as of August 14, 2017 for service-connected residuals of vertebral fractures of the thoracolumbar spine.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

B. Berry, Counsel


INTRODUCTION

The Veteran served on active duty from August 2003 to August 2007.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in February 2012 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.

In February 2015, the Board remanded his matter to the agency of original jurisdiction (AOJ) for further development.  After accomplishing additional development of the claim, the AOJ continued the denial of the claim (as reflected in the December 2015supplemental statement of the case (SSOC)) and returned this matter to the Board for further appellate consideration.

In April 2017, the Board remanded this matter to the AOJ for RO for additional evidentiary development.  After accomplishing the requested action to the extent possible, the RO granted an increase to 20 percent effective August 14, 2017 in an October 2017 rating decision.  The Veteran was advised of the partial grant of the initial rating claim, but he did not indicate that such satisfied his appeal and he did not withdraw such issue from appellate consideration. Therefore, such matter is characterized to reflect the staged ratings assigned and it remains in appellate status (as reflected on the title page).  See AB v. Brown, 6 Vet. App. 35 (1993); Hart v. Mansfield, 21 Vet. App. 505 (2007).  This appeal has returned to the Board for further appellate consideration.

While the Veteran previously had a paper claims file, this appeal is now being processed utilizing the paperless, electronic Veterans Benefits Management System (VBMS) and Virtual VA (Legacy Content Manager) claims processing systems


FINDING OF FACT

The evidence is at least evenly balanced as to whether the symptoms of the Veteran's service-connected residuals of vertebral fractures of the thoracolumbar spine more nearly approximate forward flexion of the thoracolumbar spine to 30 degrees or less; however, the preponderance of the evidence shows that the service-connected low back disability does not manifest in ankylosis or incapacitating episodes.


CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for a 40 percent rating, but no higher, for his service-connected low back disability have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Procedural Considerations

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim.  38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017).  In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  While the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

The Veteran is appealing the initial disability rating assigned for residuals of vertebral fractures of the thoracolumbar spine.  The February 2012 rating decision granted the Veteran's service connection claim for a low back disability and therefore, such claim is now substantiated.  His filing of a notice of disagreement as to the initial rating assigned in the February 2012 decision does not trigger additional notice obligations under 38 U.S.C. § 5103(a).  38 C.F.R. § 3.159(b)(3).  Rather, the Veteran's appeal as to the initial rating assignment triggers VA's statutory duties under 38 U.S.C. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  Under 38 U.S.C. § 7105(d), upon receipt of a notice of disagreement in response to a decision on a claim, the agency of original jurisdiction must take development or review action it deems proper under applicable regulations and issue a statement of the case if the action does not resolve the disagreement either by grant of the benefits sought or withdrawal of the notice of disagreement.  If VA receives a notice of disagreement in response to notice of its decision on a claim that raises a new issue, section 7105(d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved; however, section 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue.  See VAOPGCPREC 8-03 (December 22, 2003); 69 Fed. Reg. 25180 (2004); 38 C.F.R. § 3.159(b)(3) (2016).

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.15(c)(4).

In this case, VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim.  The claims file contains the Veteran's service treatment records, VA treatment records, VA examinations dated in October 2011, April 2015, and August 2017, and lay statements from the Veteran.

The VA examination reports dated in October 2011, April 2015, and August 2017 reflect that the examiners reviewed the claims file, obtained an oral history of the Veteran's back disability and evaluated the Veteran with respect to his service-connected disability.  The examiners documented in detail the findings of the physical examination, test results, and the claimed symptoms and the effect those symptoms have on his occupational functioning.  

Furthermore, the VA examinations addressed all rating criteria that are required to properly evaluated the Veteran's service-connected disabilities on appeal.  The Board has considered the Court's recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016), in which the proper interpretation of the final sentence of 38 C.F.R. § 4.59, which states "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint," was addressed.  In this regard, the Court concluded that VA examinations should include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  With respect to the Veteran's thoracolumbar spine disability, as will be discussed in detail below, the Board is granting a 40 percent disability rating for the entire appeal period, which is the maximum rating for limitation of motion of the thoracolumbar spine and a higher rating requires ankylosis.  In Johnston v. Brown, 10 Vet. App. 80 (1997), the Court indicated that where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, the regulations relating to limitation on range of motion are not for application.  See id. at 84-85 (although the Secretary suggested remand because of the Board's failure to consider functional loss due to pain, remand was not appropriate because higher schedular rating required ankylosis).  In addition, the August 2017 VA examination report shows that the VA examiner documented active range of motion on nonweight-bearing.  There is no evidence of range of motion on weight bearing, but the examiner observed that there was objective evidence of pain on weight bearing testing of the back.  The examiner noted that passive range of motion was not performed, because it was not medically appropriate and it was unsafe to perform.  Thus, the August 2017 VA examination adequately evaluated the Veteran's service-connected thoracolumbar spine under 38 C.F.R. § 4.59 in light of the holding in Correia.  Accordingly, the examinations are adequate for rating purposes. 

The issue on appeal was remanded in February 2015 and April 2017 to provide the Veteran with a VA examinations to evaluate the current severity of his service-connected back condition.  The record contains a June 2015 VA examination report that addresses the questions raised by the Board in the February 2015 remand directives.  With respect to the April 2017 remand, the Board also instructed that the VA examination must evaluate the Veteran's joint motion on both active and passive motion, in weight-bearing, and non-weight-bearing consistent with the recent holding in Correia v. McDonald, 28 Vet. App. 158 (2016).  As discussed above, the August 2017 VA examination adequately addressed that issue.  Accordingly, the Board finds that there has been substantial compliance with the February 2015 and April 2017 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Furthermore, the claims file contains the Veteran's statements in support of his claim.  The Veteran has not identified, and the record does not otherwise indicate, any existing, pertinent evidence that has not been obtained.  The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently on appeal.  

Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. 

II.  Analysis

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).  Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran.  38 C.F.R. § 4.3 (2017).  When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt.  38 U.S.C.A. § 5107(b).   

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, as in this case, when the current appeal arose from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim.  Fenderson v. West, 12 Vet. App. 119 (1999).  Moreover, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

In evaluating disabilities of the musculoskeletal system, additional rating factors include functional loss due to pain supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion.  38 C.F.R. § 4.40 (2017).  Inquiry must also be made as to weakened movement, excess fatigability, incoordination, and reduction of normal excursion of movements, including pain on movement.  38 C.F.R. § 4.45 (2017).  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or misaligned joints, due to arthritis, as entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59 (2017).  The United States Court of Appeals for Veterans Claims (Court) has emphasized that when assigning a disability rating, it is necessary to consider functional loss due to flare-ups, fatigability, incoordination, and pain on motion.   DeLuca v. Brown, 8 Vet. App. 202 (1995).  

A finding of functional loss due to pain, however, must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Moreover, when evaluating the reduction of excursion due to pain, not all painful motion constitutes limited motion.  See Mitchell v. Shinseki, 25 Vet. App. 32, 38-40 (2011).  Pain on motion can only be characterized as limiting pain constituting functional loss when the evidence shows the pain actually affects some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, or endurance.  Id. at 37.  In other words, pain may cause a functional loss, but pain, by itself, does not constitute a functional loss.  Id. at 36.  In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is 0 percent disabling (i.e., noncompensable) under the applicable diagnostic code.  The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with Diagnostic Code 5003 concerning arthritis, it does not follow that the maximum rating is warranted under the applicable diagnostic code pertaining to range of motion simply because pain is present throughout the range of motion.  Moreover, where the diagnostic code is not predicated on the loss of range of motion, or the Veteran already has the highest available rating based on restriction of motion, the provisions regarding pain in 38 C.F.R. §§ 4.40 and 4.45 do not apply.  Johnson v. Brown, 9 Vet. App. 7, 11 (1996); Johnston, 10 Vet. App. at 84-85.

The Veteran is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5235 (2017) for his service-connected residuals of vertebral fractures of the thoracolumbar spine.  Hyphenated diagnostic codes used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen.  38 C.F.R. § 4.27 (2017).  In this case, Diagnostic Code 5299 is used to identify musculoskeletal disabilities that are not specifically listed in the schedule, but are rated by analogy to similar disabilities under the schedule.  See 38 C.F.R. §§ 4.20, 4.27.  The assignment of Diagnostic Code 5235 shows that the Veteran's service-connected residuals of vertebral fractures of the thoracolumbar spine is evaluated under vertebral fracture.  

Diagnostic Code 5235 evaluates vertebral fracture of the spine under the General Rating Formula for Diseases and Injuries of the Spine.  Under that formula, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  Forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent disability rating.  A 50 percent disability rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine.

Under 37 C.F.R. § 4.71a, Plate V, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  Note (1), appending the diagnostic code, also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  Id., Note (1).

During the pendency of this appeal, the RO increased the disability rating assigned to the Veteran's residuals of vertebral fractures of the thoracolumbar spine from 10 percent to 20 percent, effective August 24, 2017.  The Board has considered whether the Veteran is entitled to a higher disability rating under the assigned stages of this appeal.  Additionally, the Board has considered whether additional staging is appropriate.  For reasons discussed in more detail below, the Board finds that the stages created by the RO are not appropriate in light of the evidence of record and as will be discussed in detail below the Veteran's service-connected disability more closely approximates a 40 percent disability rating for the entire appeal period.

Turning to the evidence of record, the Veteran underwent a VA examination in October 2011.  The Veteran reported experiencing constant pain in the mid back area which was aggravated with cold weather.  He also noted sharp pain with increased activity and range of motion.  The Veteran explained that he also experienced spasms and stiffness.  He denied radiculopathy or neuropathy problems.  The examiner documented that the Veteran experienced flare-ups.  The Veteran reported increased pain related to gym exercises or activities requiring lifting or prolonged standing more than five or ten minutes.  The flare-ups were mild to moderate lasting up to hours a few times in a week.  The Veteran was not able to do bending or lay down flat at nigh due to pain in the mid-thoracic region.  He had moderate limitation with running, and he is unable to run more than 20 minutes due to back pain.  

Physical evaluation revealed forward flexion was to 85 degrees with objective evidence of pain at 80 degrees.  Extension was normal to 30 degree with objective evidence of pain at 25 degrees.  There was no change in range of motion testing after repetitive use.  The examiner noted that the Veteran did not have any functional loss or functional impairment of the thoracolumbar spine.  There was tenderness over the mid-thoracic area.  The examiner determined that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy and the Veteran did not have any other neurological abnormalities such as bowel or bladder problems.  The examiner reported that the Veteran did not have intervertebral disc syndrome (IVDS).  The examiner determined that the Veteran's thoracolumbar spine disability impacts his ability to work as the Veteran works in a warehouse that requires lifting.  He was limited in lifting no more than five pounds and he had been assigned to other duties not requiring lifting.  He also was unable to be in a static position for prolonged time.  

In the March 2012 notice of disagreement, the Veteran noted that his back was rated on range of motion, however the pain he was experiencing falls within the parameters established with VA regulations for musculoskeletal systems, which states "a part which becomes painful on use must be regarded as seriously disabled."  He asserted that VA should grant at least a 20 percent rating based on constant pain and stiffness of his back that he has to deal with on a daily basis.  He explained that he works installing lighting systems and his back pain has caused him to mist work, especially when it is cold.

The Veteran was provided with another VA examination dated in April 2015.  The Veteran reported that he experienced discomfort with intermittent spasm over the mid-thoracic and lumbar spine.  He also described sensation of numbness over the thoracic region.  The discomfort was constant with massage not providing relief.  The Veteran denied experiencing radiation or weakness.  His symptoms become more intense with coughing or laughing.  The Veteran was able to walk without a problem.  Aggravating factors included laying down, walking , running, prolonged sitting, bending, and lifting.  The examiner noted that the Veteran did not experience flare-ups.  

Physical evaluation revealed forward flexion was to 80 degrees.  Extension was from zero to 30 degrees.  The examiner documented that there was pain noted on forward flexion and extension.  There was no evidence of pain with weight-bearing.  There was evidence of tenderness with guarding over mid-to-lower thoracic region.  Range of motion after three repetitions revealed forward flexion to 80 degrees and extension to 25 degrees.  The examiner determined that he was unable to state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over a period of time without resorting to speculation.  The Veteran did not have ankylosis or IVDS of the thoracolumbar spine.  There was no evidence of radicular pain or any other signs or symptoms due to radiculopathy and the Veteran did not have any other neurological abnormalities such as bowel or bladder problems.  

The Veteran most recently underwent a VA examination in August 2017.  He reported that his back condition has worsened and is unable to sit or stand for more than 15 or 20 minutes.  He had flare-ups of the back that was described as constant, sharp pain.  The back pain gets worse during weather changes.  The Veteran explained that he was unable to sleep, he has had to miss work, he was unable to tie his own shoes, and he was unable to carry his own child.  

Physical evaluation revealed forward flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 20 degrees.  The Veteran exhibited pain with all range of motion testing.  There was evidence of pain with weight-bearing.  There was evidence of moderate spine and paraspinal tenderness to mid and lower back.  Range of motion after three repetitions revealed forward flexion to 50 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees.  The examiner determined that pain, fatigue, and weakness significantly limit functional ability with repeated use over a period of time and with flare-ups.  The examiner estimated that forward flexion would be limited to 40 degrees on repetitive use over time and with flare-ups.  There was evidence of guarding.  The examiner documented that there was additional contributing factors to disability including less movement than normal due to limitation, interference with sitting, and interference with standing.  There was moderate symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness of the bilateral lower extremities.  The examiner determined that the Veteran had moderate severity of radiculopathy of the bilateral lower extremity.  There was no evidence of any other neurological abnormalities.  There was also no evidence of ankylosis or IVDS of the spine.  The examiner determined that the Veteran's service-connected spine disability impacted his ability to work in that the Veteran was unable to lift heavy items and unable to walk, sit, stand, bend at the waist, or lift heavy objects for extended periods of time.

In light of the evidence of record, the most pertinent of which was discussed above, the Board finds that the Veteran's residuals of vertebral fractures of the thoracolumbar spine more closely approximates the criteria for a 40 percent rating under the General Rating Formula for Disease and Injuries of the Spine.  The evidence reflects that, at worst, forward flexion was limited to 40 degrees on repetitive use over time and with flare-ups.  However, throughout the appeal period the Veteran has consistently reported back pain, stiffness, weakness, muscle spasms, flare-ups, and limitation of motion.  He experienced constant sharp pain in thoracolumbar spine region.  The Veteran reported that his flare-ups occur at least a few time a week and would last hours.  Sometime his flare-ups would cause him to miss work.  The thoracolumbar spine pain and stiffness would also result in the inability to lift more than five pounds, standing for more than five minutes, prolonged sitting and walking.  Bending aggravated his symptoms.  Furthermore, he is unable to lay down flat at night.  The Board finds it reasonable to conclude that flare-ups throughout the appeal period caused disabling manifestations that equated to at least limited forward flexion to 30 degrees or less, consistent with the Veteran's competent and credible statements in this regard.  Thus, in consideration of all of the above, the Board finds that the evidence is at least evenly balanced as to whether limitation of motion of the thoracolumbar spine, to include considering pain and stiffness on range of motion and during flare-ups and prolonged use, has throughout the appeal period more nearly approximated forward flexion of 30 degrees or less, the criterion for a 40 percent rating.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a rating of 40 percent for his service-connected thoracolumbar spine disability is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

Spine conditions may also be rated under Diagnostic Code 5243 for intervertebral disc syndrome (IVDS). The criteria for IVDS rates the disability according to the number of "incapacitating episodes" suffered per year.  See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017).  A 60 percent rating is warranted where IVDS results in incapacitating episodes having a total duration of at least 6 weeks during a 12 month period.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  Id. at Note (1).  In this case, the evidence of record does not show that the Veteran has a diagnosis of IVDS.  Furthermore, the medical and lay evidence of record reflects that the Veteran did not have any incapacitating episodes that required physician prescribed bed rest in a 12 month period. VA treatment records also do not reveal that the Veteran had any incapacitating episodes that required physician prescribed bed rest. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note 1, any associated objective neurological abnormalities, including but not limited to, bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code.  In this regard, during the appeal, the Veteran was granted a 20 percent disability rating for radiculopathy of the left lower extremity and a 20 percent disability rating for radiculopathy of the right lower extremity.  As the Veteran did not appeal these issues, they are not before the Board.  Thus, the Board will consider whether the Veteran should receive a separate rating for any other objective neurological abnormalities associated with the Veteran's service-connected residuals of vertebral fractures of the thoracolumbar spine.  The evidence reflects that the Veteran does not have any bowel or bladder problems related to his thoracolumbar spine disability.  See VA examinations dated in October 2011, April 2015, and August 2017.  Furthermore, there is no medical evidence of any neurological disability other than the above radiculopathy of the bilateral lower extremity related to the Veteran's service-connected back disability.  Thus, the Veteran is not entitled to a separate disability rating for bowel impairment, bladder impairment or any neurological disability other than the service-connected radiculopathy of the bilateral lower extremity.

In sum, resolving reasonable doubt in the Veteran's favor, an initial rating of 40 percent, but no higher, is warranted for the entire appeal period for the Veteran's residuals of vertebral fractures of the thoracolumbar spine for the reasons discussed in detail above.  Accordingly, an initial rating of 40 percent for residuals of vertebral fractures of the thoracolumbar spine is granted.  

The above determination is based on consideration of applicable provisions of VA's rating schedule.  According to VA regulation, in exceptional cases where schedular ratings are found to be inadequate, the RO may refer a claim to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of "an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities."  38 C.F.R. § 3.321(b)(1) (2017).  An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). 

Under Thun v. Peake, 22 Vet App 111 (2008), there is a three step inquiry for determining whether a Veteran is entitled to an extraschedular rating.  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability are inadequate.  Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and it 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 evaluate 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 Under Secretary for Benefits or the Director of the Compensation Service to determine whether the Veteran's disability picture requires the assignment of an extraschedular rating.

In this case, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria for evaluating the thoracolumbar spine. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if "§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board"(quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. App. 1004 (Fed. Cir. 2007)).  

Finally, the Board is cognizant that a claim for a total rating based upon individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this case, the Veteran has not asserted, nor does the evidence suggest, that his thoracolumbar spine disability, results in unemployability.  Thus, the issue of entitlement to a TDIU has not been raised by the evidence of record.


ORDER

Entitlement to an initial rating of 40 percent, but no higher, for service-connected residuals of vertebral fractures of the thoracolumbar spine for the entire appeal period is granted, subject to the laws and regulations governing the payment of monetary benefits.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs