Citation Nr: 22018195 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 95-16 811A DATE: March 28, 2022 REMANDED Entitlement to an extraschedular rating for the service-connected lumbar spine degenerative joint disease (lumbar spine disability) is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to October 31, 2006, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1976 to March 1986. In April 2018 and November 2021 letters, the Board informed the Veteran that the Veterans Law Judge (VLJ) who conducted his September 1998 hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing, and provided him a form to request another Board hearing. The letter further informed the Veteran that if he did not respond within 30 days, the Board would assume that he did not want another hearing and would proceed accordingly. In December 2021, his representative stated that he does not wish to attend a hearing before the Board. See 38 C.F.R. §§ 19.3(b), 20.707. The issues on appeal are back before the Board on Remand from the Court of Appeals for Veterans Claims (CAVC) regarding decisions rendered in a July 2018 Board decision. Specifically, the July 2018 Board decision denied an extraschedular rating for the Veteran's lumbar spine disability, determined that referral to consider an extraschedular rating was not warranted, and determined that referral for consideration of an extraschedular TDIU rating prior to October 31, 2006 was not warranted. The Veteran appealed the Board's decision to CAVC. In an August 2021 memorandum decision, CAVC set aside the Board's July 2018 decision and remanded the matter for further proceedings. 1. Entitlement to an extraschedular evaluation for the service-connected lumbar spine degenerative joint disease (lumbar spine disability) is remanded. CAVC determined that remand for this matter was warranted for the Board to address the facts and law after their decision in Morgan v. Wilkie, 31 Vet App. 162, 164 (2019), which was issued after the July 2018 Board decision. In Morgan, CAVC held that the duty to maximize benefits requires the Board, before addressing the applicability of an extraschedular rating, to consider other theories of service connection offered under the rating schedule, such as secondary service connection, analogous ratings, ratings based on individual unemployability, special monthly compensation, and the ability to rate a single disability under multiple Diagnostic Codes without pyramiding. The Veteran contends that the Board should consider entitlement to separate ratings for his chronic sleep impairment and difficulty toileting due to his service-connected lumbar spine disability. The Board notes the Veteran's 1998 hearing testimony that he has difficulty sleeping due to his back disability; a March 2001 VA examiner's observation that the Veteran had difficulty sleeping due to the chronic pain associated with his back disability; and the Veteran's report on July 2015 VA examination of significantly more trouble sleeping during a flare-up of his back disability. Regarding the Veteran's reported difficulty with bowel movements due to back pain, the Board notes that this has not been adequately addressed on examination. A July 2008 VA examiner noted that he had moderate difficulty with toileting but failed to explain further. It is well-established that thoracolumbar spine disabilities may involve neurologic impairment such as bowel or bladder problems/pathologic reflexes. The Board finds that additional medical guidance is necessary regarding these contentions, as they are medical questions. Alternatively, the Veteran contends that an extraschedular rating is warranted based upon the evidence of an exceptional disability picture and a marked interference with employment. Extraschedular consideration is provided for under 38 C.F.R. § 3.321(b)(1) when the record presents such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 2. Entitlement to a TDIU rating prior to October 31, 2006, is remanded. The CAVC decision noted that the Veteran made no argument about this matter in his appeal and therefore did not address it. However, the CAVC further noted that a request for TDIU is best understood as part of an initial claim for VA disability compensation, and that the Veteran may raise the issue to the Board on remand. Because the matter is inextricably intertwined with the claim regarding the rating for lumbar spine disability, the Board will remand it accordingly as well. The matters are REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his remanded claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken, to include notifying the Veteran of the unavailability of the records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar disability. The clinician should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under all potentially applicable rating criteria. The clinician must elicit information regarding the severity, frequency, and duration of any associated impairment, including during flare-ups. Specifically, the clinician should provide an opinion as to whether, and the degree to which, the Veteran's lumbar spine disability causes sleep impairment. The clinician is advised that a March 2001 VA examiner noted that the Veteran had difficulty sleeping due to the chronic pain associated with his back disability, and a July 2015 VA examiner noted the Veteran's reports of significantly more trouble sleeping during a flare-up of his back disability. The clinician should also provide an opinion as to whether, and the degree to which, the Veteran's lumbar spine disability causes neurologic impairment, such as bowel or bladder problems/pathologic reflexes. The clinician is advised that a July 2008 VA examiner noted that the Veteran had moderate difficulty with toileting associated with his lumbar spine disability. (Continued on the next page) 3. After the above development has been accomplished, refer the lumbar spine claim to the Director of Compensation Service for extraschedular consideration to specifically address the symptoms noted in the August 2021 CAVC decision, sleep impairment and toileting difficulties. 4. After the above development and any additionally indicated development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU prior to October 31, 2006. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechner, 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.