Citation Nr: 21006259 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-44 923 DATE: February 3, 2021 ORDER Entitlement to an extraschedular rating of 10 percent, in addition to the current schedular 10 percent rating, for lower back and coccyx strain, is granted, subject to regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The criteria for rating spine disabilities do not adequately contemplate the symptoms of the Veteran’s lower back and coccyx strain and these symptoms cause marked interference with employment. 2. The impairment caused by the Veteran’s lower back and coccyx strain more nearly approximates an additional 10 percent rating, but no higher, beyond the current schedular rating of 10 percent. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an extraschedular rating of 10 percent, but no higher, in addition to the current schedular rating, for lower back and coccyx strain have been met. 38 U.S.C. §§ 1154 (a), 1155, 5107; 38 C.F.R. § 3.321 (b)(1), 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty with the United States Air Force from December 1991 to June 2014. This case comes to the Board of Veterans’ Appeals (Board) on appeal from October 2014 and November 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2016, the Veteran testified during a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In August 2018, the Board remanded the matter for further evidentiary development. In July 2020, the Board denied an increased rating lower back and coccyx strain, however, remanded the claim to the Director of Compensation Service (Director) for extraschedular consideration. For the reasons stated in the discussion below, the RO substantially complied with the remand instructions. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). 1. Extraschedular rating for lower back and coccyx strain VA’s schedule of disability ratings is based on average impairment in earning capacity in civil occupations resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 3.321 (a) According to 38 C.F.R. § 3.321 (b)(1) ratings shall be based, as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice to the exceptional case where the schedular evaluation is inadequate to rate a single service-connected disability, the Director is authorized to approve on the basis of the criteria set forth in this paragraph (b), an extra-schedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. The Veteran contends that his lower back and coccyx strain affects his ability to perform his job duties. He reports difficulty sleeping due to low back pain and missing work due to his lower back disability. These are symptoms not contemplated by the criteria, and the medical and lay evidence raise the possibility that they interfere with employment. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In light of the Veteran’s contentions, the matter was referred to the Director for an opinion on whether a compensable rating could be assigned on an extraschedular basis under 38 C.F.R. § 3.321 (b). In an October 2020 Advisory Opinion, the Director denied an extraschedular rating. The Board is not bound by the Director’s decision and it is not considered evidence. See Kuppamala v. McDonald, 27 Vet. App. 233, 236 (2015). The Board will thus decide this issue de novo, keeping in mind the guidance of the Court that, 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, 27 Vet. App. at 443, n. 7. For the following reasons, an extraschedular rating of 10 percent, in addition to the current schedular 10 percent rating, for low back disability is warranted. In this case, the evidence of record shows that the Veteran’s low back disability is not adequately depicted by the schedular rating criteria, and his low back disability has interfered with his employment. The criteria for rating spine disabilities do not adequately contemplate the Veteran’s low back symptoms that caused marked interference with employment. Specifically, at the November 2016 Board hearing, the Veteran testified that his lower back and coccyx strain affects his ability to perform his job duties. He reported that he had severe muscle spasms and pain. He reported that he experienced flare-ups when the weather changed and while sitting or standing for too long. The Veteran indicated that sitting in one position for long periods at work requires him to get up and a lot and walk due to lower back symptoms. The Veteran noted that he has missed work due to his lower back disability. The Veteran further noted he experiences difficulty sleeping due to service-connected lower back pain. Additionally, an August 2019 VA examination report indicates that the Veteran’s low back disability impacts his job which requires travel and sitting at a desk and makes those things very difficult. The above evidence reflects that there is interference with employment to a degree beyond that which is contemplated by the schedular rating of 10 percent, i.e., marked interference with employment. See 38 C.F.R. § 4.1 (Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability’). Thus, this is an exceptional case where the criteria in VA’s Rating Schedule are inadequate, and an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service connected disability is warranted. 38 C.F.R. § 3.321 (b)(1). However, an extraschedular rating higher than 20 percent for a low back disability is not warranted. For example, both the June 2014 and August 2019 VA examination reports indicates the Veteran exhibited normal ranges of motion of the thoracolumbar spine with pain and denied flare-ups of the back. Repetitive use testing revealed no additional limitation in range of motion. The examiners indicated that the Veteran did not have IVDS of the thoracolumbar spine requiring bed rest. (continued on next page) As the preponderance of the above evidence reflects that an extraschedular rating higher than 10 percent is not warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Walker, Associate 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.