Citation Nr: 22012006 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 16-45 355 DATE: March 2, 2022 REMANDED Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine, prior to June 27, 2016, is remanded. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine, since June 27, 2016, is remanded. REASONS FOR REMAND The Veteran served on active duty from September 1986 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). This case was remanded in September 2021 for further development; it has since been re-assigned to the undersigned. Following the issuance of a June 2016 statement of the case (SOC), the Veteran filed a substantive appeal for the above listed issues. Subsequently, in December 2016, he submitted a request to withdraw the appeal. However, the Board took jurisdiction of these issues in the September 2021 Board decision by remanding them for further development instead of issuing a dismissal. As a result, VA waived jurisdiction over these issues and they are before the Board. See Percy v. Shinseki, 23 Vet. App. 37 (2009). 1. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease of the lumbar spine, prior to June 27, 2016, is remanded. 2. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine, since June 27, 2016, is remanded. The Board finds that a referral to the Director, Compensation Service, for an extraschedular determination as to whether an extraschedular rating is warranted. Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient. See 38 C.F.R. §§ 20, 4.27. However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual appellant's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability. In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating. 38 C.F.R. § 3.321 (b). There are two elements that a Veteran must demonstrate before referral for consideration of entitlement to an extraschedular disability rating is warranted: (1) An exceptional or unusual disability picture and (2) a disability picture that exhibits "other related factors," such as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 116 (2008), aff'd, 572 F.3d 1366 (Fed. Cir. 2009). An exceptional case is said to include such factors as "marked interference with employment" or "frequent periods of hospitalization" as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In this case, the record demonstrates that the Veteran's disability results in symptoms that are not contemplated by the schedular rating criteria listed in diagnostic code 5243 and marked interference with employment. During the January 2017 VA examination, the Veteran reported that his spine disability prevents him from sleeping or getting out of bed during flare-ups. The examiner noted that the functional limitations associated with the spine disability affect his physical and sedentary employment activities, including sitting, standing, ambulation, reaching, lifting, carrying, and climbing. During the October 2021 VA examination, the Veteran again reported having trouble sleeping at night due to back pain. He also reported that his is unable to sit, stand, or walk for prolonged periods of time and is unable to lift or carry anything of weight due to back pain. The examiner noted that the Veteran's spine disability impacts his ability to perform any type of occupational task as he is unable to sit, stand, or walk for extended periods of time and is unable to lift or carry anything of weight due to back pain. The Board itself may not assign an extraschedular rating in the first instance, but must leave that initial determination to the Under Secretary for Benefits or the Director of the Compensation & Pension Service. Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (recognizing that "the [Board] is not authorized to assign an extraschedular rating in the first instance under 38 C.F.R. § 3.321 (b)" or 38 C.F.R. § 4.16 (b)). Therefore, a referral to the Director, Compensation Service, for an extraschedular determination as to whether an extraschedular rating is warranted. 38 C.F.R. § 3.321 (b)(1); Thun, supra. The matters are REMANDED for the following action: 1. The AOJ should refer this case to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). The rating board should include a full statement as to the Veteran's service-connected spine disability, employment history, educational and vocational attainment and all other factors having a bearing on the issue. (Continued on next page) 2. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Meawad 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.