Citation Nr: 21016168 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 13-21 331 DATE: March 22, 2021 REMANDED Entitlement to a rating greater than 40 percent for degenerative disc disease at L5-S1 with herniated nucleus pulposus and degenerative disc disease of the thoracic spine is remanded. From June 5, 2013, entitlement to an initial rating greater than 20 percent for radiculopathy, right lower extremity, is remanded. Prior to March 7, 2013, entitlement to an initial rating greater than 20 percent for radiculopathy, left lower extremity, is remanded. From March 7, 2013, entitlement to a rating greater than 40 percent for radiculopathy, left lower extremity, is remanded. REASONS FOR REMAND The Veteran had active service from January 1992 to September 1999. This matter come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of June 2010, April 2013, and June 2013 of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2018, the Board: 1) denied a rating in excess of 40 percent for the back disability; 2) denied a rating in excess of 20 percent for radiculopathy, right lower extremity; 3) denied, prior to March 7, 2013, a rating in excess of 20 percent for radiculopathy, left lower extremity; 4) granted, from March 7, 2013, a 40 percent rating, but no higher, for radiculopathy, left lower extremity; and 5) remanded the claim of entitlement to service connection for left shoulder disability. The Veteran appealed the August 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In August 2019, the parties agreed to a Joint Motion for Partial Remand (JMPR) for Issues 1-3, and they agreed not to disturb Issue 4 only insofar as to the Board’s grant to a rating of 40% for the radiculopathy, left lower extremity. For the remanded issues, the JMPR states: 1. Duty to Assist The parties agree that vacatur and remand are required because the Board erred when it failed to ensure that it fulfilled its duty to assist in obtaining Appellant’s chiropractic records and in notifying Appellant regarding such records. See 38 C.F.R. § 3.159. Specifically, under 38 C.F.R. § 3.159(e)(2), if a claimant does not provide any necessary release of relevant records that VA is not able to obtain, “VA will request that the claimant obtain the records and provide them to VA.” Here, records indicate that Appellant obtained treatment from a private chiropractor, Ageonics in Manhattan, since 2014. (R. at 31 (30-51) (Appellant’s May 2018 response to Supplemental Statement of the Case reporting treatment from a chiropractor); 107 (106-15) (Appellant reporting in his February 2018 VA Neck Examination that he sees a chiropractor, Ageonics in Manhattan, since 2014)). However, there are no records from a chiropractor, and the Board did not provide any discussion as to whether the duty to assist was satisfied. See (R. at 4-18). The record also does not reflect whether the regional office (RO) requested such records from Appellant, whether Appellant responded to that request, or whether the RO notified him that, in the event that he did not provide a completed records release form, he should procure and submit these records. See 38 C.F.R. § 3.159. Accordingly, remand is required for the Board to ensure that VA obtains records from Appellant’s chiropractor, Ageonics in Manhattan, and if it is unable to obtain such records, provide Appellant with the requisite notice under 38 C.F.R. § 3.159(e)(2). 2. Reasons or Bases as to Whether the Record Reasonably Raised the Issue of Extraschedular Referral The parties agree that vacatur and remand are required because the Board erred in providing an inadequate statement of reasons or bases as to whether extraschedular referral of the issues of increased ratings for back disability, and bilateral lower extremity radiculopathy associated with the back disability, was reasonably raised by the record. See 38 U.S.C. § 7104(d)(1). Specifically, the Board is obligated to discuss extraschedular referral when there is evidence which reveals that the appellant’s disability presents exceptional or unusual circumstances or where the appellant has asserted that a schedular rating is inadequate. See Doucette v. Shulkin, 28 Vet. App. 366, 370 (2017); Yancy v. McDonald, 27 Vet. App. 484, 493 (2016); Thun v. Peake, 22 Vet. App. 111, 115 (2008) (“When either a claimant or the evidence of record suggests that a schedular rating may be inadequate, the Board must specifically adjudicate the issue of whether referral for an extraschedular rating is warranted.”), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, in his March 2011 statement in support of claim and subsequent statements, Appellant reported that he missed over 4 months of work in 2010 and over 30 days of work from January to March 2011 and had difficulty sleeping and going to the bathroom, drowsiness, constipation, loss of bowel and bladder control due to his medication, sexual difficulties, and pain and weakness in his ankles and knees. See (R. at 7373 (7373-75) (March 14, 2011, statement), 7097- 98 (7094-98) (October 8, 2011, statement), 6795 (6794-96) (March 7, 2013, statement)); Doucette, 28 Vet.App. at 370. However, the Board did not address whether such reporting reasonably raised the issue of extraschedular referral. See (R. at 4-18). Accordingly, remand is required for the Board to determine whether the record reasonably raised the issue of extraschedular referral, and if so, determine whether such a referral is warranted. See 38 U.S.C. § 7104(d)(1). Based on the JMPR, the Court vacated the August 2018 Board decision, and it remanded for development consistent with the JMPR. Several points bear mentioning. First, the issue of service connection for a left shoulder disorder, which the Board remanded in August 2018, returned to the Board in November 2020. At that time, the Board again remanded that issue for additional development. The AOJ has jurisdiction of this issue, so the Board will not address it here. Second, in December 2019, the Board remanded the appeal of the issues on the title page for additional development. Part of this development involved ordering the AOJ to attempt to obtain outstanding records including those from Ageonics. The AOJ complied with the Board's directive in January 2020 by requesting records from Ageonics. Ageonics did not respond. However, in December 2020, the Veteran submitted a VA Form 21-4142 listing Ageonics as a provider from which VA should obtain records. The AOJ rejected this form because the Veteran did not sign it. The AOJ, after some additional development, requested treatment records from Ageonics at two addresses (80 Maiden Lane, Suite 905 New York, NY 10038 and 109 East 36th Street, 1st Floor, New York, NY 10016), Medrock Medical P.C., and Back & Body Medical on February 12, 2021. On February 22, 2021, the Veteran, as recorded in a Report of General Information, notified the AOJ that no medical records are available from Ageonics and Medrock Medical P.C. because "they are no longer in business." On March 4, 2021, the AOJ sent a second request to Back & Body Medical. That request is still outstanding, so remand is warranted to await potential receipt of these records. Independent of this, VA treatment records were added to the claims file on October 1, 2020. A January 8, 2020 record says, "Pt states he has been seeing an outside chiropractor who incorporates some PT in session (Living Wellness Chiropractic of Columbia)." These records do not appear in the claims file. Mindful of the similar circumstances which occasioned the JMPR for the Ageonics records, remand is warranted to attempt to obtain these records. Third, the Board, mindful of the JMPR, found, in December 2019, it did not possess enough information to determine whether the Veteran's back appeal warranted referral to the Director of Compensation Service (DCS) for extraschedular consideration. Therefore, it remanded that issue to the AOJ to develop and to determine whether referral was warranted in the first instance. Coincident with this, the Board ordered development into the symptoms articulated in the JMPR. For the Veteran's understanding, consideration of an extraschedular rating requires a three-step inquiry. To warrant referral for extraschedular consideration, a disability must be so exceptional or unusual that it renders application of the regular schedular ratings impractical. 38 C.F.R. § 3.321(b)(1) (2020). The first question is whether the schedular rating criteria adequately contemplate the veteran’s disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). 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. Long v. Wilkie, 2020 U.S. App. Vet. Claims LEXIS 2371. The first Thun element compares a claimant’s symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If a veteran’s disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Here, as the appeal was in remand status, the AOJ service connected the Veteran's overflow incontinence, impairment of the rectal sphincter, and erectile dysfunction (to include special monthly compensation for loss of use) in November 2020. These three disabilities, when considered with his service-connected radiculopathy of the left lower extremity, radiculopathy of the right lower extremity, and chronic adjustment disorder with mixed anxiety and depressed mood account for most of the symptoms articulated in the JMPR. Because VA is compensating the Veteran for these symptoms separately from his back disability, they cannot serve as the basis for extraschedular consideration. Furthermore, to the extent the Veteran alleges that his back disability has caused musculoskeletal disabilities below his waist, i.e., the reference to "pain and weakness in his ankles and knees" in the JMPR, the Board notes two things. First, the AOJ denied service connection for a right knee disorder in April 2013, but the Veteran did not appeal this denial. Second, the AOJ denied service connection for a left hip disorder, a right hip disorder, and a right knee disorder in January 2015, but the Veteran did not appeal these denials. Extraschedular consideration is not warranted when, as demonstrated here, there is a schedular mechanism, i.e., secondary service connection, that can account for the symptoms or functional impairment the Veteran contends his back disability causes. Based on the foregoing, the Board finds the Veteran has not satisfied the first prong of Thun. As such, the Board does not need to address the second prong of Thun. Accordingly, the Board finds referral to the DCS for extraschedular consideration is not warranted at this time. The matters are REMANDED for the following action: 1. Obtain updated VA and non-VA treatment records. 2. Determine whether Back & Body Medical responds to the AOJ's March 4, 2021 request for records. Take appropriate action based on whether it responds. 3. Attempt to obtain the Veteran's treatment records from Living Wellness Chiropractic of Columbia. The Veteran's treatment at this facility is recorded in a January 8, 2020 VA treatment record in the CAPRI file uploaded on October 1, 2020. Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Sopko, 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.