Citation Nr: 21016071 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 14-14 227 DATE: March 19, 2021 ORDER Entitlement to an extraschedular rating for degenerative arthritis of the lumbar spine is denied. FINDING OF FACT The Veteran’s degenerative arthritis of the lumbar spine does not present such an exceptional disability picture with related factors such as marked interference with employment or frequent periods of hospitalization that it renders the rating schedule inadequate. CONCLUSION OF LAW The criteria for entitlement to an extraschedular rating for degenerative arthritis of the lumbar spine are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 3.321(b)(1). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to August 1970. In June 2016, he testified via video conference before a Veterans Law Judge (VLJ). A transcript of the hearing is of record. In October 2018, the Board remanded the Veteran’s claim for an increased rating for degenerative arthritis of the lumbar spine on an extraschedular basis. In January 2021, he testified at a virtual Board hearing on that issue. A transcript of the hearing is of record. Increased Rating Claims on an Extraschedular Basis Generally, disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in VA’s Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Ordinarily, the VA Rating Schedule will apply unless 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); see also Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The Court has set out a sequential three-step analysis, based on the language of 38 C.F.R. § 3.321 (b)(1), to determine whether to refer a case for extraschedular consideration. Thun v. Peake, 22 Vet. App. 111 (2008). If (1) the schedular criteria do not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether an extraschedular rating is warranted. Id. 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 RO for referral to the Director of Compensation Service. The Board did so in this case in October 2018. In June 2020, the AOJ referred the matter to the Director for extraschedular evaluation. In a June 2020 Advisory Opinion, the Director denied entitlement to an extraschedular rating for degenerative arthritis of the lumbar spine under provision 38 C.F.R. § 3.321(b)(1) on the basis that the evidence of record showed no factual demonstration of impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization. The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). See also Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015) (the Board reviews the entirety of the Director’s decision de novo and is thus authorized to assign an extraschedular rating when appropriate). In Long v. Wilkie, No. 16-1537 (U.S. Vet. App. Dec. 30, 2020), the Court clarified the criteria for referral of a claim for extraschedular consideration. The Court stressed that the first step in Thun is not a “mechanical test;” it is not automatically satisfied just because a certain symptom or functional effect is not expressly listed in a diagnostic code. The Court also emphasized that “exceptionality remains the touchstone in determining whether extraschedular consideration is warranted under § 3.321(b)(1)” and whether Thun step one is satisfied. This “broad” analysis is “fact-bound and highly contextual” based on “a totality of the factors inquiry” into whether the veteran’s disability picture as a whole (i.e., full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. The Court in Long also explained that extraschedular consideration is not applicable to claims that are evaluated properly but ultimately denied under the schedular ratings; rather, it applies only after conventional rating tools prove inadequate to evaluate a veteran’s symptomatology in the first place due to its exceptional nature. Thus, the rating schedule must be deemed inadequate before extraschedular consideration is warranted. Extraschedular consideration is appropriate only after the agency has exhausted all other tools for a disability rating, whether direct, secondary, or analogous ratings. The Court additionally held that functional effects are not the focus of the first Thun step; rather, they are relevant to Thun step two, which examines whether the veteran’s exceptional symptomatology causes “marked interference with employment,” “frequent periods of hospitalization,” or other related factors. The Veteran is currently in receipt of 20 percent and 40 percent schedular ratings under Diagnostic Code (DC) 5237. See General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71(a). These criteria contemplate lumbosacral strain with limited motion, muscle spasm, guarding, and ankylosis. The propriety of these schedular ratings is a separate analysis that was addressed in a prior Board decision and will not be discussed here. See generally King v. Shulkin, 29 Vet. App. 174, 181 (2017) (holding that “the availability of higher schedular ratings plays no role in an extraschedular analysis and it is inappropriate for the Board to deny extraschedular referral on this basis”). This analysis will therefore focus solely on the issue of entitlement to an extraschedular evaluation. At his January 2021 Board hearing, the Veteran testified that he was unable to perform household chores and had difficulty dressing due to much more restrictive lumbar range of motion. He also indicated that he had a part-time job as a driver delivering payroll checks to different construction sites but had been laid off/temporarily suspended because of the COVID-19 pandemic. The Veteran testified that prior to that his back disability interfered with his ability to work due to difficulty with prolonged sitting. He stated that his back pain increases with driving and because he could no longer tolerate the side effects from prescribed pain medications, he had to pull over multiple times during the day to take a break due to severe back pain. He also testified that he had a significant weight gain from years of inactivity because of his back pain. See also June 2016 Board hearing transcript. The record also contains VA examination reports dated in 2012, 2013, and 2016 as well as private medical evidence submitted by the Veteran. This evidence shows the Veteran largely described difficulty with painful motion, interference with sitting, standing and/or weight-bearing, along with flare-ups. He also reported that his back pain was exacerbated with lying in bed and driving, and that his back pain interfered with his ability to sit or drive for long periods of time. These symptoms and associated functional impairment are clearly encompassed in the schedular rating criteria which assess limitations of motion of the spine including due to pain, muscle spasm, guarding, and other orthopedic factors that result in functional impairment. See General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71(a) DCs 5235-5243. The Veteran has also described additional symptoms, such as difficulty dressing, an inability to perform household chores and weight gain from inactivity due to back pain. However, the Board notes that the type of movement required to dress oneself, ( i.e., the ability to bend or twist the back to put on socks or pants) is largely determined by the lumbar spine’s ability to flex and rotate, which is exactly what is measured under the schedular rating. See General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, DCs 5235-5243. Likewise, to the extent that household chores and exercise involve any type of lumbar spine motion such functional impairment is contemplated under the schedular rating. Id. Activities that involve prolonged standing, sitting, walking, or bending, or functional impairment manifested by symptoms such as weakness, fatigability, and incoordination are also contemplated under the regulations. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). In addition, the pain elicited by such movements is contemplated in the 20 and 40 percent ratings. See 38 C.F.R. § 4.59. As the Veteran’s symptomology is contemplated by the schedular criteria, extraschedular consideration is not warranted. The Board acknowledges that there is some evidence of interference with employment as a delivery driver in that the side effects from his pain medications makes driving too dangerous. However, the Veteran has not indicated or suggested that his lumbar spine disability caused him to miss any time from work. There is also no indication of demotion or special accommodation having to be made to compensate for his lumbar spine disability. Instead the record demonstrates that he was laid off from his part time job due to the COVID-19 pandemic. The Board also notes that the Veteran’s prior occupation was a lawyer and he specifically indicated that his back condition was not the reason that occupation ended. See VA Form 21-8940, dated August 31, 2009. There is no probative evidence of “marked” interference of the sort contemplated under 38 C.F.R. § 3.321(b), nor indeed is there evidence of other factors such as frequent periods of hospitalization or other compelling factors which brings this case within the realm of exceptional disability due to Veteran’s lumbar spine symptomatology. In sum, the evidence of record does not establish that the Veteran’s lumbar degenerative arthritis has produced symptoms not contemplated by the rating criteria, as applied to his schedular ratings under DC 5237. The Board therefore finds that this is not an exceptional case where the criteria in VA’s Rating Schedule are inadequate. 38 C.F.R. § 3.321 (b)(1). For the foregoing reasons, the preponderance of the evidence is against entitlement to an extraschedular rating, for degenerative arthritis of the lumbar spine and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bryant, Jeana R 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.