Citation Nr: 21074666
Decision Date: 12/16/21	Archive Date: 12/16/21

DOCKET NO. 99-11 912
DATE: December 16, 2021

REMANDED

1. Entitlement to a disability rating higher than 40 percent for a low back disorder, to include low back strain with intervertebral disc syndrome (IVDS), degenerative disc disease (DDD), aggravated scoliosis, and degenerative arthritis with facet arthrosis and foraminal stenosis, to include extraschedular consideration, is remanded.

2. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.

REASONS FOR REMAND

The Veteran had active service from October 1976 to April 1980.

This matter is before the Board of Veterans' Appeals (Board) on appeal from September 1998 and November 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).

In light of the complexity of this case, the Board finds that a discussion of the procedural history would be beneficial. On December 16, 1997, the Veteran filed an increased rating claim for a service-connected back injury, which, at the time, was characterized as low back pain and evaluated as 20 percent disabling. In a September 1998 rating decision, the RO continued the 20 percent rating and recharacterized the service-connected disability as lumbosacral strain. The Veteran appealed this decision, and the Board remanded the issue for further development in April 2003. The Board denied the claim in July 2004. The Veteran appealed the Board's July 2004 decision to the United States Court of Appeals for Veterans Claims (Court). In a June 2005 Order, the Court granted a June 2005 Joint Motion for Remand (JMR) and remanded the issue to the Board. In November 2005, the Board remanded the issue in light of the JMR. Then, in a February 2010 rating decision, the RO recharacterized the service-connected back disability to low back strain and increased the 20 percent rating to 40 percent, effective April 7, 2009. In April 2011 and October 2012, the Board remanded the increased rating claim for further development. In October 2012, the Board also noted that the issue of entitlement to service connection for a back disorder (other than the service-connected low back strain) had been raised by the record but had not been adjudicated by the RO; thus, the issue was referred to the Agency of Original Jurisdiction (AOJ) for initial adjudication. Accordingly, the RO issued a November 2012 rating decision, in which it denied entitlement to service connection for mild scoliosis and DDD of L4-L5 and L5-S1 with arthrosis.

In June 2013, the Board denied the increased rating claim for the service-connected low back strain. The Board granted separate service connection, and a separate 10 percent rating, for radiculopathy in the Veteran's left lower extremity (LLE). In an August 2013 rating decision, the RO assigned that separate rating effective April 7, 2009.

Later in June 2013 the Veteran appealed the November 2012 RO denial of service connection for a back disorder (other than low back strain). Then the Veteran appealed the June 2013 Board decision to the Court. In a February 2014 Order, the Court granted a Joint Motion for Partial Remand (JMPR) and remanded the issue to the Board. In May 2014, the Board remanded the issues of entitlement to service connection for a back disorder (other than the service-connected low back strain) for issuance of a statement of the case (SOC) by the AOJ. The Board also remanded the increased rating claim for the service-connected low back strain. Thereafter, in May 2014, the AOJ addressed the issue of entitlement to service connection for a back disorder (other than the service-connected low back strain) in a SOC. Then, in December 2017 and November 2020, the Board remanded both back issues for further evidentiary development.

While both back claims were in remand status, in a January 2021 rating decision, the RO granted entitlement to service connection for a back disorder (other than low back strain), to include IVDS, DDD, and aggravated scoliosis and degenerative arthritis with facet arthrosis and foraminal stenosis, effective December 16, 1997, the date of receipt of the increased rating claim for the service-connected low back strain. A 40 percent disability rating was assigned from December 16, 1997. Thus, the RO granted service connection for a back disorder other than the service-connected low back strain, granted an increased rating for the service-connected low back strain, and combined the disabilities together.

The Board notes that, when a veteran seeks an increased rating, it is generally presumed that the maximum benefit allowed is sought, and a claim remains in controversy where less than the maximum benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). In March 2021, the Board remanded the appeal for a rating higher than 40 percent for the back disorder for further evidentiary development.

With regard to the issue of entitlement to a TDIU, the Board remanded this issue in October 2012 for issuance of a SOC by the AOJ. The AOJ adjudicated this issue in a November 2012 SOC, and the Veteran filed a timely substantive appeal. The issue was certified to the Board in January 2013. In June 2013, May 2014, December 2017, November 2020, and March 2021, the Board remanded this issue for additional evidentiary development.

1. Disability rating for a low back disorder

The Board is remanding this issue for referral to the Director of Compensation and Pension (C&P) for consideration of an extraschedular rating. The Veteran is seeking a rating higher than 40 percent, from December 16, 1997, forward, for a low back disorder, to include low back strain with IVDS, DDD, aggravated scoliosis, and degenerative arthritis with facet arthrosis and foraminal stenosis. 

VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007).

When evaluation of a musculoskeletal disability is based on limitation of motion, that evaluation must include consideration of impairment of function due to such factors as pain on motion, weakened motion, excess fatigability, diminished endurance, or incoordination. 38 C.F.R. §§ 4.40, 4.45, 4.59; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Evaluation of joints that have painful motion also should include consideration of whether there is pain on both active and passive motion, consideration of whether there is pain with and without weightbearing, and comparison of the range of motion to that of any opposite undamaged joint. 38C.F.R. § 4.59; see Correia v McDonald, 28 Vet. App. 158 (2016).

The Court has noted that "A veteran may...be entitled to a higher disability evaluation than that supported by mechanical application of the schedule where there is evidence that his or her disability causes additional functional lossi.e., 'the inability...to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance'including as due to pain." Sharp v. Shulkin, 29 Vet. App. 26, 31-32 (2017); 38 C.F.R. § 4.40. The Court added, "A higher evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in  the joint's range of  movement, strength, fatigability, or coordination." Sharp at 32; 38 C.F.R. § 4.45.

The Veteran asserts that his low back has markedly interfered with his capacity for employment. In an April 2009 VA examination, the examiner found that the Veteran's back disability markedly interfered with employment. The Board finds it necessary to consider whether, during any part of the appeal period, a higher rating is warranted based on an extraschedular basis.

The threshold factor for extraschedular consideration is a finding that the evidence "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 an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. If the Veteran's disability picture meets both inquiries, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Board cannot assign an extraschedular rating in the first instance pursuant to 38 C.F.R. § 3.321(b). When the issue is either raised by the claimant or is reasonably raised by the evidence of record, the Board initially must specifically adjudicate whether to refer a case to the Director of C&P for an extraschedular evaluation. Thun, supra, at 115; Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, the Board then has jurisdiction to decide the extraschedular claim on the merits. In fact, the Court has held that, although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director of C&P determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd v. Brown, 9 Vet. App. at 96-97 (stating that once Board properly refers an extraschedular rating issue to Director of C&P for review, appellant may "continue[ ] to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C. §§ 511(a), 7104(a) ("All questions in a matter... subject to decision by the Secretary shall be subject to one review on appeal to the... Board.").

In April 2011, the Board remanded a back disability rating appeal for referral to the Director of C&P for consideration of an extraschedular rating. The RO requested that review in October 2011. In January 2012 the Director of C&P reviewed the matter and found that an extraschedular rating was not warranted. Those actions, however, considered the service connected disability to be lumbosacral strain only, with other low back disorders not service connected. Service connection was later established for a low back disorder including multiple disorders. The Board finds it necessary to consider whether an extraschedular rating is warranted for all of the aspects of the Veteran's low back disability for which service connection is now established. The Board therefore is remanding the issue for a new referral to the Director of C&P for review.

The Board notes that, during the appeal period, from December 16, 1997, forward, the relevant rating criteria have changed. Specifically, rating criteria for lumbosacral strain were amended effective September 26, 2003, and effective February 7, 2021. Rating criteria for IVDS were amended effective September 23, 2002, effective September 26, 2003, and effective February 7, 2021. VA is to apply the earlier version before the effective date for each change. From the effective date for each change, VA is to apply either the earliest version or a revised version, whichever is more favorable to the claimant. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Further review of the question of an extraschedular rating for the Veteran's back disability should reflect the versions of the rating criteria that may be applied over the parts of the appeal period.

2. TDIU

The Board is remanding this issue to be addressed after actions regarding an intertwined issue that are directed in the present remand. The Veteran contends that the effects of his service-connected disabilities of the low back and LLE warrant a TDIU.

VA regulations allow for the assignment of total disability ratings, where the rating under the rating schedule is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Entitlement to a TDIU depends on the impact of a veteran's service-connected disabilities on his ability to secure and follow substantially gainful employment, in light of factors such as work history, education, and vocational training. 38 C.F.R. § 4.16.

If there is only one disability, it must be ratable at 60 percent or more. If there are two or more disabilities, they must merit a combined rating of at least 70 percent, with one condition rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). A TDIU may be assigned, on an extra-schedular basis, to a veteran who does not meet the rating schedule requirements for a TDIU, if the veteran, by reason of his or her service-connected disabilities, is unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16(b).

The existing 40 percent rating for the Veteran's service-connected low back disorder is on appeal. His LLE radiculopathy is rated at 10 percent. The existing combined rating is 50 percent. The existing individual and combined ratings do not meet the criteria for a TDIU under 38 C.F.R. § 4.16(a).

In prior reviews, the Board found a basis to refer to the TDIU issue the Director of C&P to consider whether a TDIU is warranted on an extraschedular basis, under 38 C.F.R. § 4.16(b). In September 2013 and May 2017, the Director found that an extraschedular TDIU was not warranted. The Veteran subsequently submitted an October 2021 private vocational assessment addressing the TDIU claim.

The TDIU issue is intertwined with the back disability rating issue that the Board presently is remanding for additional action. The Board is remanding the TDIU issue to be considered after completion of development and readjudication of the back disability rating issue.

The matters are REMANDED for the following action:

 

1. Refer the case to the Director of Compensation and Pension for a determination as to whether the Veteran is entitled, for any period from December 16, 1997, forward, to the assignment of an extraschedular rating for a low back disorder, to include low back strain with intervertebral disc syndrome, degenerative disc disease, aggravated scoliosis, and degenerative arthritis with facet arthrosis and foraminal stenosis. The rating board should include a full statement of all factors having a bearing on the issue. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). That statement should include, but not be limited to, evidence alleging or finding marked interference with employment, and the need to consider changes in rating criteria effective September 23, 2002, September 26, 2003, and February 7, 2021.

2. Then readjudicate the claim for a higher rating for a low back disorder.

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3. Then readjudicate the claim for a total disability rating based on individual unemployability.

4. Then, if any decision is adverse to the Veteran, issue a supplemental statement of the case and allow the applicable time for response. Then return the case to the Board.

 

 

Nykeia Miller

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	K. J. Kunz, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.