Citation Nr: 1736616	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-24 367	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1.  Entitlement to an increased rating for a disability of the lumbar segment of the spine, currently rated as 40 percent disabling.

2.  Entitlement to a total disability rating based on unemployability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

M. Prem, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1996.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA).  This matter was remanded in January 2014 and September 2016 for further development.  

The January 2009 rating decision increased the Veteran's rating from 10 percent to 20 percent.  The RO then issued a November 2016 rating decision in which it increased that rating to 40 percent effective August 4, 2008 (the date of receipt of the increased rating claim).  

The Veteran presented testimony at a Board hearing in January 2011.  A transcript of the hearing is associated with the Veteran's claims folder. 

The Veteran, in a December 2010 correspondence, stated that he could not work due to his service-connected back disability (VBMS, 12/29/10).  The Court of Appeals for Veterans Claims held that a request for a TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate 'claim' for benefits, but rather, can be part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In other words, if the claimant or the evidence of record reasonably raises the question of whether the Veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue whether a TDIU is warranted as a result of that disability.  Id.  As such, the Board has added the issue of entitlement to a TDIU rating.

The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The Veteran's disability of the lumbar segment of the spine is not manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months.


CONCLUSION OF LAW

The criteria for entitlement to a disability evaluation in excess of 40 percent for the Veteran's service-connected disability of the lumbar segment of the spine have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including § 4.7 and Codes 5235 to 5243 (2016).
	

REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

In an October 2008 letter, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2014) and 38 C.F.R. § 3.159(b) (2016).  The RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that he was expected to provide.  The Veteran was informed of the process by which initial disability ratings and effective dates are assigned, as required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  

The "duty to assist" contemplates that VA will help a claimant obtain records relevant to the claim, whether or not the records are in Federal custody, and that VA will provide a medical examination when necessary to make a decision on the claim.  38 C.F.R. § 3.159 (2016).  VA has done everything reasonably possible to assist the Veteran with respect to the claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2014) and 38 C.F.R. § 3.159(c) (2016).  Relevant service treatment and other medical records have been associated with the claims file.  The Veteran was given VA examinations in November 2008, March 2010, March 2014, and October 2016, which are fully adequate.  The examiners reviewed the claims file in conjunction with the examinations, and addressed all relevant rating criteria.  The October 2016 examination was ordered specifically to obtain the information regarding active and passive range of motions and motion with weightbearing required by Correia v. McDonald, 28 Vet. App. 158 (2016).  The examiner has explained why it is not medically feasible to obtain that information in this case.  The duties to notify and to assist have been met.  

Further regarding the duty to assist, the United States Court of Appeals for Veterans Claims (Court) has held that the provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings:  The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At the Veteran's hearing, the undersigned identified the issue, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in the disability since the last examination. Ultimately the claim was remanded for a new examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant. 

Increased Ratings

Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  
 
The current General Rating Formula for Diseases and Injuries holds that for diagnostic codes 5235 to 5243 (unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episode) a 100 percent rating is warranted when there is unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when there is unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 30 percent rating is warranted when there is forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 20 percent rating is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  

The criteria also include the following provisions:

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. 

Note (2):  (See also Plate V.)  For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 

Note (3):  In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2).  Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 

Note (4):  Round each range of motion measurement to the nearest five degrees. 

Note (5):  For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 

Note (6):  Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.  

Under the rating criteria for the evaluation of intervertebral disc syndrome, a 60 percent disability is the highest available rating, and is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least four weeks, but less than six weeks during the past 12 months.  A 20 percent rating is warranted when there are incapacitating episodes having a total duration of at least two weeks, but less than four weeks during the past 12 months.  A 10 percent rating is warranted when there are incapacitating episodes having a total duration of at least one week, but less than two weeks during the past 12 months.  An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician.  An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method results in the higher evaluation.  

In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination.  
4.59.

These provisions are not for consideration; however, where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis.  Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

At his January 2011 Board hearing, the Veteran testified that he cannot bend over in any direction at all (forwards, backwards, or sideways).  He stated that he is taking Celebrex and is in receipt of physical therapy.  He stated that the physical therapy has not helped.  It occasionally makes him feel better in the short term; but by the following day, his condition reverts to what it was.  He stated that he worked for the post office; and he retired at age 62 because he didn't want to deal with the pain associated with bending over to put mail in lower boxes.  He also had trouble with heavy lifting.  He rated the severity of his daily pain as a 7 on a scale of 1-10.  He testified that the back disability also interferes with recreational activities such as working on projects around the house.  

The Veteran underwent a VA examination in November 2008.  The examiner reviewed the claims file in conjunction with the examination (VBMS, 11/12/08, pgs. 5-10).  The Veteran reported sharp pain in his neck and low back, that he rated a 6 on a scale of 1-10.  Treatment consisted of occasional taking of over-the-counter medications and Celebrex for joint pains.  He denied flare-ups.  He reported intermittent numbness to the arms.  He walked without assistance and without the use of a cane or a crutch.  He did not use a back brace.  He could walk a half a mile.  There was no history of unsteadiness or falls.  The disability affected his daily activities with sitting for greater than one hour and for periods of long standing and lifting.  These activities aggravated back pain.  The disability did not affect his eating, grooming, bathing, toileting, dressing, his usual occupation (he is retired), or recreational activities.  It did affect his driving.  

Examination of the spine revealed a flattened lumbosacral spine area.  The Veteran moved with very stiff movements.  Range of motion of the cervical spine was: forward flexion from 0-30 degrees; extension from 0-30 degrees; right and left lateral flexion from 0-25 degrees; and right and left rotation from 0-50 degrees.  Range of motion of the lumbar spine was: forward flexion from 0-70 degrees; extension from 0-5 degrees; right and left lateral flexion from 0-10 degrees; right and left rotation from 0-10 degrees.  The cervical and lumbar spines were painful on range of motion.  The Veteran had facial grimacing with range of motion of these movements.  He was not additionally limited by pain, fatigue, weakness, or lack of endurance following repetitive movement.  There was no spasm or weakness.  He did have tenderness of the low lumbar spine area and the posterior cervical spine area.  He also had postural abnormalities and flattening of the lumbosacral spine area.  The musculature of the back and neck was normal.  Neurological examination and sensory examination were normal throughout the body.  He had good strength in the upper and lower extremities.  Reflexes, biceps, triceps, ankle and knee reflexes were 2+ and equal bilaterally.  Rectal examination was normal; and straight leg raising was negative.  He could walk on his heels and toes without difficulty.  He had not had an episode of intervertebral disc syndrome requiring bedrest or treatment by a physician in the past 12 months.  X-rays of the cervical and lumbar spine showed spondylosis of the cervical spine and degenerative arthritis of the lumbar spine.  

The Veteran was diagnosed with spondylosis of the cervical spine with decreased range of motion, and degenerative arthritis of the lumbar spine with decreased range of motion.  

In March 2009, the Veteran reported that his disability had become more severe and that he was not able to achieve greater than 30 degrees of forward flexion (VBMS, 5/6/10, p. 33).  Examination of the back was within normal limits.    

A March 2009 lumbar assessment from HealthSouth revealed forward flexion to 17 degrees; extension to 18 degrees; right and left lateral flexion to 23 degrees; right rotation to 30 degrees; and left rotation to 35 degrees (VBMS, 5/27/09).  There was pain noted on testing.  

The Veteran underwent another VA examination in March 2010.  The examiner reviewed the claims file in conjunction with the examination.  The Veteran reported low back pain radiating into his right posterior/lateral leg to his knee; stiffness; decreased motion; and occasional numbness and tingling in his right leg   He rated his back pain as a constant 4-5/10.  He also had bilateral hip pain which he rated as 7-8/10.  He denied any flare ups, incapacitation, fatigue, weakness, spasms, leg/foot weakness, bladder complaints secondary to spinal problems, fecal incontinence, or falls.  He denied the use of a back brace or assistive devices.  He stated that he stopped working due to back pain after 41 years of federal service.  He reported that he was able to use a riding mower (with back pain as a result).  He was able to do some back exercises; and he was able to drive himself to the examination.  

Upon examination, the Veteran's posture and gait were observed to be normal.  There was lumbar flattening.  No other abnormal spinal curvatures were noted.  The Veteran achieved forward flexion from 0-34 degrees; extension from 0-5 degrees; left lateral flexion from 0-5 degrees; right lateral flexion from 0-16 degrees; left rotation from 0-44 degrees; and right rotation from 0-35.  There was no objective evidence of pain on active range of motion or following repetitive motion.  There was no additional limitation of motion after three repetitions of motion.  

An April 2010 outpatient treatment report reflects that the Veteran underwent an MRI of the spine and a stress test.  The stress test was read as negative and the MRI showed actual regression of the bulging disc (VBMS, 5/6/10, p. 7). 

A December 2010 outpatient treatment report reflects that the Veteran reported difficulty with standing and prolonged sitting.  He stated that once he is up and moving, he is able to tolerate the pain.  He reported not being able to bend in any direction.  Upon examination, the Veteran achieved forward flexion to 10 degrees, extension to 5 degrees, left lateral flexion to 5 degrees, right lateral flexion to 6 degrees, left rotation to 30 degrees, and right rotation to 15 degrees (VBMS, 12/29/10).  

In December 2010, the Veteran submitted numerous lay statements that attested to the Veteran's difficulty in bending over, lifting heavy things, and prolonged standing

A February 2011 physical therapy report reflects that the Veteran achieved 10 degrees of forward flexion, 5 degrees of extension, and 5 degrees of left and right lateral flexion.  The examiner noted that physical therapy had not provided any significant improvement.  The Veteran continued to report a moderate amount of lower back pain and limited trunk motion (VBMS, 3/7/11).

The Veteran underwent a VA examination in March 2014.  The examiner reviewed the claims file in conjunction with the examination.  The Veteran reported daily pain that he rated a 6 on a scale of 1-10.  He reported occasional back spasms.  He denied incapacitation.  He reported monthly flare-ups of pain lasting 4-5 days.  The flare-ups were manifested by increased pain.  Limitation of motion was reported to be unchanged during a flare-up (it just hurts more and it does additionally limit functionality).  The Veteran stated that it does not lock up to the point where he cannot move.  

Upon examination, the Veteran achieved forward flexion to 40 degrees; extension to 20 degrees; right lateral flexion to 25 degrees; left lateral flexion to 20 degrees; and right and left rotation to 20 degrees.  There was no objective evidence of painful motion.  After repetitive use testing, range of motion was unchanged.  There was no localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine.  There were no muscle spasms or guarding.  There was no muscle atrophy.  Deep tendon reflexes were normal.  Sensory examination was normal.  The Veteran had mild radiculopathy (for which he is serviced connected).  There was no ankylosis of the spine.  The Veteran had intervertebral disc syndrome (IVDS) but had not had any incapacitating episodes during the past 12 months.  The Veteran reported that he occasionally used a back brace and that he regularly used a cane.  The examiner noted that work restrictions may include avoidance of prolonged standing or sitting, lifting, carrying, bending, and twisting during episodes of pain.  Use of pain medication and muscle relaxants can affect dexterity and alertness.  The examiner noted that in 1997, the RO granted service connection for chronic lumbar strain.  However, he suggested that since the September 1996 x-rays indicated the presence of spondylosis, the better diagnosis at that time would have been lumbar spondylosis rather than chronic lumbar strain.

Outpatient treatment reports reflect that the Veteran sought treatment for severe low back pain (severity 9 on a scale of 1-10) in May 2014.  He was treated with a TENS unit which reduced the pain level to 6 (VBMS, 9/26/16, pgs. 178-179).  

Pursuant to the Board's September 2016 remand, the Veteran underwent another VA examination in October 2016.  The examiner reviewed the claims file in conjunction with the examination.  

Upon examination, the Veteran achieved forward flexion from 0-25 degrees; extension from 0-15 degrees; right and left lateral flexion from 0-30 degrees; and right and left rotation from 0-15 degrees.  The examiner stated that "Due to lack of exertional effort by the Veteran during active [range of motion] measurements due to pain/discomfort during the examination, it is more than likely an under-estimation of the actual [range of motion] measurements of the spine."  Pain was noted on forward flexion and extension.  There was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine.  There was no additional loss of motion after three repetitions.  The examiner was unable to state whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups.  The Veteran did not have muscle spasm or guarding.  The Veteran did not have muscle atrophy.  He had 1+ deep tendon reflexes in the ankles bilaterally.  Otherwise, deep tendon reflexes were normal.  Sensory examination was normal.  Straight leg raising tests were negative.  There was no ankylosis of the spine.  The examiner noted that the Veteran occasionally used a back brace and a cane for support and assistance with locomotion.  The examiner opined that work restrictions may include avoidance of prolonged exertion and no heavy lifting.  The examiner noted that the Veteran has not had any incapacitating episodes in the past 12 months, and has not been to the emergency room for treatment of acute back pain in the past 12 months.  There was no evidence of any neurological deficits, including radiculopathy or neuropathy.  He stated that "Due to lack of exertional effort by the Veteran during active [range of motion] measurements due to pain/discomfort during the examination, range of motion could only be performed with active motion and could not be performed with passive motion, weightbearing and nonweightbearing since Veteran also has degenerative changes involving the cervical spine, hip joints and sacroiliac joints which contributed to limited range of motion and as to how much these contributes to limited range of motion cannot be determined."

Analysis

In order to warrant a rating in excess of 40 percent, the Veteran's disability must be manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks during the past 12 months.

The Board notes that the Veteran has undergone four VA examinations and none of them have revealed unfavorable ankylosis of the entire thoracolumbar spine.  To the contrary, the Veteran achieved forward flexion to 70 degrees, 34 degrees, 40 degrees, and 25 degrees at his November 2008, March 2010, March 2014, and October 2016 VA examinations respectively.  The March 2014 and October 2016 examiners specifically noted that there was no ankylosis.  

The Board recognizes that outpatient treatment records dated March 2009, December 2010, and February 2011 reflect a greater restriction of movement than the VA examinations.  The March 2009 lumbar assessment from HealthSouth revealed forward flexion to 17 degrees; extension to 18 degrees; right and left lateral flexion to 23 degrees; right rotation to 30 degrees; and left rotation to 35 degrees.  The December 2010 outpatient treatment report reflects that the Veteran achieved forward flexion to 10 degrees, extension to 5 degrees, left lateral flexion to 5 degrees, right lateral flexion to 6 degrees, left rotation to 30 degrees, and right rotation to 15 degrees.  The February 2011physical therapy report reflects that the Veteran achieved 10 degrees of forward flexion, 5 degrees of extension, and 5 degrees of left and right lateral flexion.  Even these records fail to reveal unfavorable ankylosis of the entire thoracolumbar spine

In regards to DeLuca criteria, there is no medical evidence to show that there is any additional loss of motion of the lumbosacral spine due to pain or flare-ups of pain, supported by objective findings, or due to excess fatigability, weakness or incoordination, to a degree that supports a rating in excess of 40 percent.  Moreover, as the next highest rating based on loss of range of motion requires ankylosis, they do not appear to be applicable.  See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997).

In regards to Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Board notes that the Veteran denied flare-ups at his November 2008 and March 2010 VA examinations.  At his March 2014 VA examination, he reported flare-ups but denied any additional loss of motion.  He stated that during a flare-up, it just hurts more (which impacts functionality).  The October 2016 VA examiner was unable to render an opinion on whether pain, weakness, fatigability, or incoordination significantly limited functional ability with flare-ups.  Further, he noted that the lack of exertional effort by the Veteran resulted in an under-estimation of the actual range of motion measurements of the spine.  

Finally, with regards to Correia v. McDonald, 28 Vet. App. 158 (2016), the October 2016 VA examiner noted that "Due to lack of exertional effort by the Veteran during active [range of motion] measurements due to pain/discomfort during the examination, range of motion could only be performed with active motion and could not be performed with passive motion, weightbearing and nonweightbearing since Veteran also has degenerative changes involving the cervical spine, hip joints and sacroiliac joints which contributed to limited range of motion and as to how much these contributes to limited range of motion cannot be determined."

The Board recognizes that the Veteran has testified that he cannot bend over in any direction at all (forwards, backwards, or sideways).  The Board also acknowledges several lay statements attesting to the Veteran's difficulty in bending over (as well as performing heavy lifting).  However, the preponderance of the evidence weighs against a finding that the Veteran's spine is unfavorably ankylosed.

Likewise, the preponderance of the evidence reflects that the Veteran's disability is not manifested by incapacitating episodes having a total duration of at least six weeks during the past 12 months.  At his March 2010, March 2014, and October 2016 VA examination, he specifically denied experiencing episodes.  

As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a rating in excess of 40 percent for a disability of the lumbar segment of the spine must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).

Extraschedular Ratings

Pursuant to 38 C.F.R. § 3.321(b)(1) (2016), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).

Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242, 244 (2008). 

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors are marked interference with employment and frequent periods of hospitalization). 

The rating criteria fully contemplate the Veteran's disability.  As noted above, his symptomatology has consisted of pain and limitation of movement.  These symptoms are contemplated in the rating criteria.  Additionally, symptoms of radiculopathy have been contemplated insofar as the Veteran is separately rated for radiculopathy in the lower right and left extremities.  The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is, therefore, not warranted.  38 C.F.R. § 3.321(b)(1).


ORDER

Entitlement to an increased rating for a disability of the lumbar segment of the spine is denied.


REMAND

In a December 2010 correspondence, the Veteran stated that "there is no way I could be employed with my current body movement limitation and pain."  At other places in the record, the Veteran also stated that he retired, at least in part, due to back pain.  While the issue of entitlement to a TDIU is not separate claim for benefits, the Board finds that this aspect of the claim has not been addressed by the RO.  Moreover, given that the most recent VA examiner (October 2016) questioned the "exertional effort" by the Veteran, the Board finds that the evidence is inadequate to render a decision on this issue.  

Accordingly, the case is REMANDED for the following action:

1.  The Veteran should be afforded an orthopedic examination for the purpose of determining the current severity of his back and cervical spine disorders, particularly as it related occupational functionality and whether the Veteran's service connected disabilities prevent the Veteran from securing or following a substantially gainful occupation consistent with his education and occupational experience.

It is imperative that the claims file be made available to the examiner for review in connection with the examination.  

The examiner should provide reasons for this opinion.  The examiner is advised that the Veteran is competent to report injuries and symptoms and that his reports must be considered in formulating the requested opinion.  

2.  After completion of the above, the AMC should review the expanded record and determine if the benefits sought can be granted.  If the claim remains denied, then the AMC should furnish the Veteran and his representative with a supplemental statement of the case, and afford a reasonable opportunity for response before returning the record to the Board for further review.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
JOHN L. PRICHARD
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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