Citation Nr: 21011348 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 08-26 109 DATE: March 1, 2021 REMANDED Entitlement to an extraschedular rating for low back pain with degenerative changes for the period prior to May 11, 2010 is remanded. Entitlement to an extraschedular rating for low back pain with degenerative changes for the period from May 11, 2010 to March 20, 2020, is remanded. Entitlement to an extraschedular rating for low back pain with degenerative changes for the period since March 20, 2020, is remanded. REASONS FOR REMAND The Veteran served in active duty service with the Army from April 1975 to October 1983. This matter is on appeal from a November 2007 rating decision. The Veteran was afforded a December 2009 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. In a November 2017 Board decision, the Board denied extraschedular rating for low back pain with degenerative changes in excess of 10 percent prior to May 11, 2010, and in excess of 20 percent thereafter. The Veteran appealed his denial to the Court of Appeals for Veterans Claims (CAVC or the Court). The Court in July 2019 vacated and remanded the issue for readjudication. The Board remanded this appeal in March 2016, November 2017 and January 2020 for additional development. The Board notes that during the pendency of the appeal, an August 2020 rating decision granted an increase in evaluation of the Veteran’s low back pain with degenerative changes to 40 percent effective March 20, 2020. As the increased evaluation is granted in relation to the Veteran’s entitlement to an extraschedular rating, the Board has recharacterized the issues on appeal as entitlement to an extraschedular rating for low back pain with degenerative changes for the period prior to May 11, 2010; an extraschedular rating for the period from May 11, 2010 to March 20, 2020; and an extraschedular rating for the period since March 20, 2020. The Board finds that remand is warranted for additional development. In a March 2016 Board decision, the Board remanded the opinion to obtain an opinion from VA’s Director of Compensation Service for extraschedular consideration. An August 2016 VA extraschedular memorandum was obtained. Review of the claims record shows in December 2016 the Veteran reported that he had to cut back on hours worked as a security guard had to go on early Social Security. In a May 2017 VA examination the Veteran stated that he had “retired from full-time work” and drawing Supplemental Security Income; in a September 2017 the Veteran clarified his earlier reports and stated that he had “retired early” because he was tired of “hurting all the time” and later stated that he retired early for Social Security retirement benefits. In the July 2019 Court decision, the Court found the November 2017 Board decision incorrectly considered the Veteran’s 2017 reports of taking early Social Security retirement benefits as Supplemental Security Income as well as not considering the Veteran’s inability sleep due to back pain; as such, the Court vacated and remanded the issue for readjudication. As the statements and reports made by the Veteran regarding taking early retirement for Social Security retirement benefits were made after the August 2016 extraschedular opinion and not considered, the Board finds a new extraschedular opinion is needed. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated treatment records. 2. After completing any development deemed necessary, the AOJ should refer the case to the VA Director of Compensation Services for extraschedular consideration for low back pain with degenerative changes for the periods prior to May 11, 2010; the period from May 11, 2010 to March 20, 2020; and for the period since March 20, 2020. 3. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case (SSOC) and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.