Citation Nr: 22015459 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 19-10 910 DATE: March 17, 2022 REMANDED Entitlement to an increased disability ratings for service-connection low back disability with degenerative arthritis, to include extraschedular consideration, is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Army from August 1969 to August 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The March 2017 rating decision granted service connection and assigned a 10 percent evaluation from August 29, 2013 and a 100 percent rating for convalescence from November 21, 2016, and then a 20 percent rating effective January 1, 2017. In a prior Board decision, the Board remanded the issue currently before the Board for further development. Additionally, the Board denied an earlier effective date for the award of service connection. The Board notes the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court issued a decision, but the matter has not come back before the Board and a separate decision will be issued regarding this matter. In a November 2020 rating decision, the RO assigned a 40 percent rating effective September 2020 for the Veteran's service-connected low back disability. Here, the Veteran seeks higher ratings for his service-connected low back disability, to include on an extraschedular basis for the entire period on appeal. See 38 C.F.R. § 3.321(b)(1); see also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board may not assign an extraschedular rating in the first instance but must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). After a review of the evidence of record, the Board finds that such a referral is warranted. Available VA examinations and medical treatment records do not reflect range of motion testing results that warrant a higher rating under applicable criteria 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. Although the highest ratings available under these criteria have been assigned based on the Veteran's medical records and VA examinations, the Board finds that there is additional symptomatology evidenced in the record that the Veteran is not receiving compensation for as of yet. Specifically, the Veteran reported disturbance of movement, interference with sitting and standing, impact of working, inability to stand or walk some days, and limitations on bending and lifting. As such, the Board concludes that he has satisfied the first prong of the Thun analysis. The Veteran's VA examinations have indicated that his back condition has impacted his ability to work. Thus, the Board finds that there is sufficient evidence that the back disability causes marked interference with employment as necessary to satisfy the second prong of the Thun analysis. Therefore, in the interest of fairness to the Veteran, and in recognition of the inability of the available criteria to adequately compensate him for the severity of his back disability, the Board finds that referral for extraschedular consideration is warranted under 38 C.F.R. § 3.321(b)(1), and this must be accomplished on remand. The matters are REMANDED for the following action: Refer the Veteran's claim for entitlement to an extraschedular rating for low back disability to the Under Secretary for Benefits or the Director of Compensation and Pension Service, for extraschedular consideration under 38 C.F.R. § 3.321(b)(1). All documentation resulting from this request must be added to the claims file. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glaeser, Jennifer 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.