Citation Nr: 21024864 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 00-24 247A DATE: April 26, 2021 ORDER Entitlement to an extraschedular rating for esophagitis and gastritis is denied. Entitlement to an extraschedular rating for a lumbar spine disability and bilateral lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of October 2, 1998, but not earlier, is granted. Entitlement to an effective date as of October 2, 1998, but not earlier, for Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. The Veteran’s esophagitis and gastritis does not present such an exceptional disability picture that it makes the rating schedule inadequate. 2. The Veteran’s lumbar spine disability and bilateral lower extremity radiculopathy does not present such an exceptional disability picture that it makes the rating schedule inadequate. 3. As of October 2, 1998, the evidence is at least in equipoise regarding whether the service-connected disabilities alone precluded the Veteran from securing or following substantially gainful employment. 4. As of October 2, 1998, but not earlier, the Veteran had a permanent and total rating due to TDIU. CONCLUSIONS OF LAW 1. The criteria for an extraschedular rating for esophagitis and gastritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.10, 4.45, 4.50, 4.71a. 2. The criteria for an extraschedular rating for a lumbar spine disability and bilateral lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321 (b)(1), 4.10, 4.45, 4.50, 4.71a. 3. As of October 2, 1998, the criteria for a TDIU were met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). 4. The criteria for an effective date of October 2, 1998, but not earlier, for Dependents’ Educational Assistance benefits under Chapter 35 are met. 38 U.S.C. §§ 3510, 5110, 5113; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1973 to November 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). In March 2003, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In June 2004, the Board remanded the case for further development. In March 2008, the Board granted service connection for a gastrointestinal disability, and denied a separate rating for neurological manifestations of the lumbar spine disability and increased ratings for the lumbar spine disability. The appellant appealed to the United States Court of Appeals for Veterans Claims. In an April 2011 Memorandum Decision, the Court vacated and remanded the Board’s decision with respect to the decision denying increased ratings for a lumbar spine disability. In April 2012, August 2015, and April 2019, the Board remanded the claims for gastrointestinal, and lumbar spine and neurological disabilities for further development. Extraschedular Ratings Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular rating criteria for that service-connected disability are inadequate. This requires the Board to compare a Veteran’s specific symptoms and their severity with those contemplated by the schedular criteria. King v. Shulkin, 29 Vet. App. 174 (2017). Second, if the Veteran’s symptoms or their severity is not contemplated by the rating schedule, the Board to must determine whether the claimant’s exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. Third, if the first two elements are met, the final element mandates that the Board refer the claim to the Director of Compensation Service for a determination about whether an extraschedular rating is warranted. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321 (b). 1. Entitlement to an extraschedular rating for esophagitis and gastritis The Board finds that an extraschedular rating for esophagitis and gastritis is not warranted in this case. Specifically, the Board finds that the symptoms and severity as reported by the Veteran are contemplated by the rating criteria. Esophagitis and gastritis are currently rated by analogy under Diagnostic Codes 7399-7304 pertaining to gastric ulcers. A 10 percent rating is warranted for a mild gastric ulcer with recurring symptoms once or twice yearly. A 20 percent rating is warranted for a moderate gastric ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration or with continuous moderate manifestations. A 40 percent rating is warranted for a moderately severe gastric ulcer; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating is warranted for a severe gastric ulcer; with pain only partially relieved by standard ulcer therapy, with periodic vomiting, recurrent hematemesis, or melena, with manifestations of anemia and weight loss, productive of definite impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7304. The Veteran’s esophagitis and gastritis are manifested by nausea, vomiting, reflux, indigestion, frequent belching, discomfort, and some weight loss. The Veteran reported that the symptoms have progressed, and he has difficulty eating. Those symptoms, and their resulting impairment, are contemplated by the rating schedule under Diagnostic Code 7304, and the medical evidence of record shows there is nothing exceptional or unusual about the Veteran’s esophagitis and gastritis. Moreover, there is no indication that he has any additional symptomatology for which a separate rating could be assigned. Morgan v. Wilkie, 31 Vet. App. 162 (2019). The Court has held that the VA has powerful, ready-made schedular rating tools with which it can better adjudicate claims that include symptoms and effects not contemplated by an applicable diagnostic code. Morgan v. Wilkie, 31 Vet. App. 162 (2019). The Board finds that there are no additional known manifestations of the Veteran’s service-connected esophagitis and gastritis that are essential to rate, on a schedular basis. Therefore, the Board finds that the rating criteria reasonably describes the Veteran’s disability level and symptomatology for his service-connected esophagitis and gastritis. Consequently, the rating schedule is adequate to evaluate the Veteran’s disability picture, and referral for the assignment of an extraschedular rating is not warranted. Therefore, the evidence cannot be said to demonstrate such an exceptional disability picture that the assigned schedular rating is inadequate. Accordingly, the Board finds that symptoms are contemplated by the rating schedule and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b). 2. Entitlement to an extraschedular rating for a lumbar spine disability and bilateral lower extremity radiculopathy An April 2019 Board decision denied an increased rating continued to rate the lumbar spine disability and bilateral lower extremity radiculopathy as a single disability. The Board finds that an extraschedular rating for lumbar spine disability and bilateral lower extremity radiculopathy is not warranted in this case. Specifically, the Board finds that the symptoms and severity as reported by the Veteran are contemplated by the rating criteria. The lumbar spine disability and bilateral lower extremity radiculopathy are currently rated under Diagnostic Code 5243 pertaining to Intervertebral Disc Syndrome (IVDS). During the appeal, the lumbar spine disability has been rated under Diagnostic Codes 5242 and 5099-5003 pertaining to arthritis. During the pendency of the appeal, the criteria for rating disorders of the spine were revised twice. The former rating criteria for evaluating the spine were in effect through September 22, 2002, and then were revised beginning on September 23, 2002. Effective September 26, 2003, the diagnostic codes were renumbered and criteria for evaluating disorders of the spine were substantially revised. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Generally, where the rating criteria are amended during the course of the appeal, both the former and the current schedular criteria are considered. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to September 23, 2002, former Diagnostic Code 5293 provided a 10 percent rating for mild intervertebral disc syndrome (IVDS), a 20 percent rating for moderate symptoms with recurring attacks, and a 40 percent rating for severe symptoms, with recurring attacks and with intermittent relief. A 60 percent rating was warranted when the IVDS was pronounced, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief. 38 C.F.R. § 4.71a, former Diagnostic Code 5293 (2002). Effective on September 23, 2002, intervertebral disc syndrome is rated under the same criteria as now provided in Diagnostic Code 5243. 38 C.F.R. § 4.71a, former Diagnostic Code 5293 (2002). Effective September 26, 2003, the regulations for rating disabilities of the spine were revised, and the diagnostic codes were reclassified. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The IVDS Rating Formula provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. Paralysis of the sciatic nerve is rated in accordance with the criteria in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under those criteria, mild incomplete paralysis is rated 10 percent. Moderate incomplete paralysis is rated 20 percent. Moderately severe incomplete paralysis is rated 40 percent. Severe incomplete paralysis, with marked muscular atrophy is rated 60 percent. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated 80 percent. 38 C.F.R. § 4.124a. A review of the record shows the Veteran reported daily pain, limited motion, muscle spasms, flare-ups, and occasional incapacitating episodes due to the lumbar spine disability. The bilateral radiculopathy manifested with fatigue, stiffness, and weakness. Overall, the radiculopathy was moderate in severity during the appeal period. While these symptoms show significant limitations, these limitations are within the rating criteria for spinal disorders and peripheral nerve disabilities. The Veteran has not alleged any symptoms unique or so unusual in relation to his eye condition that are not already contemplated by the rating criteria. Therefore, the symptoms of the Veteran’s lumbar spine disability and bilateral lower extremity radiculopathy are contemplated by the rating criteria. The assignment of a higher rating based on extraschedular consideration in this situation is not appropriate. The Board notes the evidence highlighted in the April 2011 Memorandum Decision. While the medical evidence cited showed that the Veteran may have been limited in his ability to work due to the lumbar spine disability, the evidence did not demonstrate such an exceptional disability picture. For instance, at the October 1998 VA general medical examination, the examiner found the Veteran was unable to do any kind of work due to the back disability, and at the December 1999 VA spine examination, the examiner concluded the Veteran was confined to his home. While the first step of the extraschedular analysis requires a comparison of the level of severity and symptomatology of the disability with the rating criteria for that disability. The second step then requires a determination as to whether the Veteran’s exceptional symptomatology causes marked interference with employment, frequent periods of hospitalization, or other related factors. That evidence addresses the second step rather than the first. While the disability has been manifested by pain, restricted activity, limited movement, and lack of control of the right leg, the Board finds that the medical evidence does not seem to show an exceptional or unusual disability picture. The 60 percent rating criteria envision an interference with employment. However, the Board finds that the evidence does not support a finding of interference with employment that would warrant the assignment of a higher rating. Therefore, the evidence cannot be said to demonstrate such an exceptional disability picture that already assigned schedular rating is inadequate. Accordingly, the Board finds that symptoms are contemplated by the rating schedule and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b). Earlier Effective Dates In general, the effective date of an award of increased compensation shall be the earliest as of which it is factually ascertainable that an increase in disability had occurred, if an application is received within one year from that date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(2); 38 C.F.R. § 3.400 (o); Harper v. Brown, 10 Vet. App. 125 (1997). Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) as of October 2, 1998, but not earlier, The Veteran’s representative contends TDIU should be granted from November 28, 1980, or September 28, 1984. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. An August 2016 rating decision granted a TDIU, effective February 23, 1999, based on when the Veteran first met the percentage criteria for consideration of the assignment of TDIU. Prior to February 23, 1999, service connection was established for lumbar spine disability and bilateral lower extremity radiculopathy, rated 60 percent, effective October 2, 1998. Prior to October 2, 1998, the Veteran did not have a compensable rating for any service-connected disability. The Board finds that as of October 2, 1998, the service connected disabilities met the schedular criteria under 38 C.F.R. § 4.16(a). The Board notes the Veteran’s limited mobility due to constant pain, lack of control of the right leg, and functional loss. The Board highlights the VA examiners’ opinions that found the Veteran’s disabilities affected obtaining or maintaining gainful employment. The October 1998 VA examiner noted the Veteran was in constant pain and his activity was markedly restricted. The December 1999 VA examiner found that the Veteran was confined to his home and depended on his family for support for cooking and cleaning. In addition, a July 2000 VA report of contact with the Veteran’s physician documented that the Veteran is still felt to be disabled from work. The Board finds that the evidence weighs in favor of the claim. Further, the Board finds that the evidence supports a finding that the Veteran was unable to secure or follow a substantially gainful occupation due to the service-connected disabilities as of October 2, 1998. However, the Board finds that the preponderance of the evidence is against a finding that TDIU was warranted prior to October 2, 1998, as the Veteran did not have a compensable rating for any disability prior to that date. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that an earlier effective date of October 2, 1998, but not earlier, for TDIU is warranted and is granted. The Board finds that the preponderance of the evidence is against the assignment of an earlier effective date as the evidence shows that the service-connected disabilities made him unable to secure or follow a substantially gainful occupation as of October 2, 1998, but not earlier. Therefore, the claim for effective date as of October 2, 1998, but not earlier, for TDIU is granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 4. Entitlement to an effective date for Chapter 35 as of October 2, 1998, but not earlier, The Board finds an earlier effective date for Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is warranted, as that effective date is predicated on the effective date for the 100 percent rating, or a permanent and total rating assigned due to a TDIU rating. To be found permanently and totally disabled, so as to apply for Chapter 35 benefits, the rating must be total, or 100 percent. For purposes of eligibility to DEA benefits under Chapter 35, the child, spouse, or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran’s death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). An August 2016 rating decision awarded DEA benefits under Chapter 35, effective February 23, 1999. That is the same effective date as the award of a TDIU. Prior to February 23, 1999, the Veteran was assigned a 60 percent combined service-connected disability rating. The criteria for educational benefits provides that for effective dates assigned following the grant of benefits under Chapters 30, 31, 32, and 35 shall, to the extent feasible, correspond to the effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Since the Board has granted an earlier effective date for TDIU as of October 2, 1998, the Veteran is entitled to an earlier effective date for DEA benefits. As a total rating has been assigned as of October 2, 1998, that is the earliest for eligibility for DEA benefits. Prior to that date, the service-connected disability rating was 0 percent. Therefore, the claim for an earlier effective date as of October 2, 1998, but not earlier, for DEA benefits is granted. The Board finds that the preponderance of the evidence is against the assignment of an earlier effective date. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.