Citation Nr: 1749124	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  09-36 145	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1.  Entitlement to a rating higher than 40 percent for acute myositis of the lumbar spine, degenerative joint disease (DJD) at the L4-5 level, and degenerative disc disease (DDD) at the L5-S1 level, i.e., for a low back disability.

2.  Entitlement to a total disability rating based on individual unemployability (TDIU), including on an extra-schedular basis.

REPRESENTATION

Appellant represented by:	California Department of Veterans Affairs


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Jonathan Z. Morris, Associate Counsel


INTRODUCTION

The Veteran had active military service in the Army from September 1954 to August 1957 and in the Air Force from December 1958 to July 1960.

This appeal to the Board of Veterans' Appeals (Board/BVA) is from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In February 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing.  A transcript of the proceeding is of record.

This case was last before the Board in February 2016, when it was remanded for further development.  On remand the Agency of Original Jurisdiction (AOJ) continued the denial of the Veteran's appeal, as reflected in the March 2017 Supplemental Statement of the Case (SSOC), and returned file to the Board for further appellate review.  There was compliance, certainly the acceptable substantial compliance, with the Board's February 2016 remand instructions.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of entitlement to a TDIU on an extra-schedular basis is addressed in the REMAND portion of the decision.  The REMAND of this portion of this claim is to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1.  The Veteran's acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 level has been manifested primarily, at worst, by forward flexion limited to 60 degrees, albeit with painful, also tenderness and an altered gait with use of a cane; but there has been no evidence of any ankylosis or regulatory-defined incapacitating episodes, meaning those requiring bedrest prescribed by a physician and treatment by a physician owing to intervertebral disc syndrome (IVDS).

2.  The Veteran has not met the schedular criteria for a TDIU because he has one service-connected disability that is rated as 40 percent disabling rather than as at least 60-percent disabling.


CONCLUSIONS OF LAW

1.  The criteria are not met for a rating higher than 40 percent for the acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 level.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.40, 4.45, 4.59, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2016).

2.  The schedular criteria also are not met for a TDIU.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16(a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

For increased rating claims, 38 U.S.C.A. § 5103 (a) requires, at a minimum, the Secretary to: (1) inform the claimant that in order to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; and, (3) further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic Codes," and that the range of disability applied may be between 0 and 100 percent "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that VCAA notice need not be veteran specific, or refer to the effect of the disability on "daily life").

Once service connection is granted, Courts have held that the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial.  See 38 U.S.C.A. § 5103(a); see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Nonetheless, the Board notes that, in a November 2008 letter, the Veteran was informed of what evidence was required to substantiate the claim, and of his and VA's respective responsibilities in obtaining evidence.  Additionally, this letter also notified the Veteran of the criteria for assigning a disability rating and an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Moreover, the Veteran was afforded ample notice of the applicable law and requirements for substantiating his claim in the September 2009 Statement of the Case (SOC).  He has had ample opportunity to respond or supplement the record, and has not alleged that any notice was less than adequate.  Therefore, the Board finds that VA's duty to notify is satisfied.

Regarding the duty to assist, the Board notes that the claims file contains the Veteran's service treatment records (STRs), pertinent post-service medical records, and his written contentions.  Neither the Veteran nor the Veteran's representative has identified, and the record does not otherwise indicate, any other evidence relevant to his claim that has not been obtained.  Furthermore, the Veteran was afforded a VA compensation examination in December 2008 and February 2017 to address the nature and severity of his lumbar spine disability.  Upon review of the medical evidence, the Board concludes that these examination reports, collectively, are adequate for the purpose of rendering a decision in this case.  38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303 (2007).

Accordingly, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.

II.  Increased Rating for Lumbar Spine Disability

When evaluating the severity of a particular disability, it is essential that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of a disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  If the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found.  This practice is known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  If the evidence for and against a claim is in equipoise, then the claim will be granted.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities at 38 C.F.R. Part 4.  These percentage ratings represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

Back disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.  38 C.F.R. § 4.71a.

Disabilities of the spine (other than IVDS when evaluated on the basis of incapacitating episodes) are to be rated under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243.  These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine."  68 Fed. Reg. 51, 454 (Aug. 27, 2003).  Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code.  38 C.F.R. § 4.71a, Note (1).

The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions."  38 C.F.R. § 4.6.

Under the Formula for Rating IVDS, a 40 percent disability rating is assigned 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 60 percent disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  An incapacitating episode is defined as a period of symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician.  Id.

The Veteran's service-connected acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 level is currently assigned a 40 percent disability rating, effective March 7, 1991, under 38 C.F.R. § 4.71a, Diagnostic Code 5237.

In order to warrant a disability rating higher than 40 percent under the Formula for Rating IVDS, there needs to be medical evidence of: (1) IVDS; and, (2) incapacitating episodes due to symptoms of IVDS that requires bedrest prescribed by a physician.  In this case, there is no medical evidence of record documenting any incapacitating episodes and the Veteran has not been shown to have IVDS.

The VA examination reports from the December 2008 and February 2017 VA examinations reflect that no evidence of IVDS of the thoracolumbar spine was found.  Similarly, there were not any incapacitating episodes requiring bedrest prescribed by a physician that were reported during the previous 12 months.

As the evidence of record does not reflect any IVDS of the Veteran's thoracolumbar spine, the Board finds that an evaluation higher than 40 percent is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes.

Even though a higher rating is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes at any point during the period on appeal, the Veteran must still be evaluated for a higher rating under the General Rating Formula for Diseases and Injuries of the Spine.  Under the General Rating Formula for Diseases and Injuries of the Spine, in pertinent part, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour.  A 40 percent evaluation is warranted if forward flexion of the cervical spine is 30 degrees or less; or, if there is favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.

The Veteran was afforded a VA examination in December 2008, where he demonstrated lumbar spine forward flexion 0 to 70 degrees, extension 0 to 20 degrees, left and right lateral flexion 0 to 20 degrees, and left and right lateral rotation 0 to 20 degrees.  His combined range of motion of the lumbar spine was 170 degrees.  Range of motion was limited by pain with evidence of weakness, spasm, lack of endurance, incoordination, and fatigue after repetitive testing.  The examination report documents an altered gait with the use of a cane.  Lastly, the VA examiner indicated that there were no signs of radiculopathy or any ankylosis, and the examination report did not indicate whether the Veteran suffered from any neurologic abnormalities, to include any bowel or bladder impairment.

The Veteran was afforded another VA examination in February 2017, where he demonstrated lumbar spine forward flexion 0 to 60 degrees, extension 0 to 15 degrees, right lateral flexion 0 to 15 degrees, left lateral flexion 0 to 30 degrees, right lateral rotation 0 to 25 degrees, and left lateral rotation 0 to 25 degrees.  His combined range of motion of the lumbar spine was 170 degrees.  Range of motion was limited by pain with evidence of fatigue and lack of endurance after repetitive testing.  There was no guarding or muscle spasm.  Lastly, the examiner indicated that there were no signs of any ankylosis, and noted that the Veteran did not suffer from any neurologic abnormalities, to include any bowel or bladder impairment.

The Board finds that the December 2008 and February 2017 VA examinations were thorough and adequate and provided a sound basis upon which to base a decision with regard to the Veteran's claim for increase.  See Barr v. Nicholson, 21 Vet. App. 303 (2007).  The examiners considered the relevant history of the Veteran's lumbar spine disability, including the lay evidence of record, performed a physical examination, and provided a rationale to support the conclusions reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  Moreover, the February 2017 VA examination is compliant with Correia v. McDonald, 28 Vet. App. 158 (2016).

In order to warrant a disability rating higher than 40 percent under the General Rating Formula for Diseases and Injuries of the Spine, the evidence would need to reflect that there was either unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine.

For the entire period on appeal, the Board finds that an evaluation higher than 40 percent is not warranted under the General Rating Formula for Diseases and Injuries of the Spine, because, at worst, the Veteran demonstrated forward flexion of the thoracolumbar spine at 60 degrees, and there was no sign of any ankylosis.  In fact, the evidence shows that the Veteran's acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 level was primarily manifested by, at worst, forward flexion limited to 60 degrees, painful motion, tenderness, and an altered gait with the use of a cane without evidence of any ankylosis or incapacitating episodes which required bedrest as prescribed by a physician due to IVDS, which more closely approximates the diagnostic criteria for a 20 percent disability rating.  However, as the currently assigned rating is more favorable to the Veteran, the Board will not disturb the presently assigned 40 percent evaluation.

In reaching this determination, the Board acknowledges that pain on motion must be taken into account when rating a disability based on limitation of motion, even where there is compensable loss as a result of limitation of motion.  DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, to receive disability compensation for painful motion, that pain must result in functional loss (i.e., limitation in the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance").  See 38 C.F.R. § 4.40; see also Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011).  In other words, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes.  Mitchell, 25 Vet. App. at 37.

Here, given the Veteran's overall range of motion during his VA examinations, which took pain into consideration, the Board finds that a 40 percent disability rating properly compensates him for the extent of functional loss resulting from symptoms like painful motion.

Lastly, regarding Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board finds that there are no objective neurologic abnormalities associated with the Veteran's lumbar spine disability.  The medical evidence fails to show any neurological symptomatology related to his lumbar spine disability during the period on appeal.  In fact, the Veteran explicitly denied any radicular pain during the February 2017 VA examination and reported that he had not experienced such pain for many years.  Similarly, after reviewing diagnostic testing from various times during the period on appeal, the February 2017 VA examiner indicated that there were no objective findings of radiculopathy present.  Therefore, the Board finds that a separate rating for any additional neurological manifestations of the Veteran's cervical spine disability is not warranted.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1).

III.  Extraschedular Consideration

While the Board is precluded by regulation from assigning an extraschedular rating in the first instance, the Board is not precluded from considering whether the case should be referred to the Director, Compensation and Pension Service.  38 C.F.R. § 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional or unusual disability picture where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Id. at 115-16.  When these two elements are met, the appeal must be referred to the Director for consideration of the assignment of an extraschedular rating.

On the other hand, if the rating criteria reasonably describe the Veteran's level of disability and symptomatology, then the disability picture is contemplated by the Rating Schedule.  In such instances, the assigned schedular evaluation is adequate and referral is not required.  Thun v. Peake, 22 Vet. App. 111, 116 (2008).

Here, the Board finds that the schedular rating is adequate.  The diagnostic criteria contemplate and adequately describe the symptomatology of the Veteran's service-connected lumbar spine disability.  See Thun, 22 Vet. App. at 115.  When comparing the Veteran's disability symptoms with the schedular criteria, the Board finds that his symptoms are congruent with the disability picture represented by the ratings assigned and he does not have symptoms associated with the disability that have been unaccounted for by the schedular ratings assigned herein.  38 C.F.R. § 4.71a.  Accordingly, a comparison of the Veteran's symptoms and functional impairment resulting from his service-connected lumbar spine disability with the pertinent schedular criteria does not show that his acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 level presents "such an exceptional or unusual disability picture... as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321 (b).

Based on this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization.  See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment).  As such, referral for extraschedular consideration is not warranted.  See VAOPGCPREC 6-96.

The Board notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced.  Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  In this case, the Veteran is not service-connected for any other disability aside from his lumbar spine condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration is warranted under Johnson.

As to any express or implied contention that because the rating criteria are silent as to effects of occupational and daily activities that the rating schedule does not contemplate the total disability picture, this is insufficient to conclude that the rating criteria are inadequate because this is precisely what the rating criteria are designed to do and the Veteran has not demonstrated that the rating schedule is inadequate in any way.  See 38 C.F.R. §§ 3.321 (a), 4.1.

The statements or findings of impaired function, such as pain and particularly restrictions as to locomotion, pertain to functional limitations that are contemplated by the governing Diagnostic Code criteria and corresponding regulations.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45.  Additionally, 38 C.F.R. § 4.40 and § 4.45 provide that musculoskeletal system ratings contemplate functional loss and the factors of disability affecting the joints.  The evaluations are all encompassing in that they have specific requirements such as motion, yet are broad in that they provide for a level of impairment based on functional loss.  The inability to accomplish certain tasks, such as walking or running are not "symptoms" set forth in any portion of the Rating Schedule, yet they are a result of the same symptoms of pain, painful and limited motion, and decreased strength.  Therefore, it is a result contemplated by the rating criteria as it is based on the same symptomatology.

In reaching this determination, the Board considered the doctrine of reasonable doubt.  However, the preponderance of the evidence is against referral of the claim for extraschedular consideration.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV.  Schedular TDIU

In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  In making this determination, the central inquiry is whether the Veteran's service-connected disabilities, alone, are of sufficient severity to cause unemployability.  Hatlestad v. Brown, 5 Vet. App. 524 (1993).  Consideration may be given to his level of education, special training and previous work experience, but not to his age or any impairment caused by nonservice-connected disabilities.  38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993).

If the schedular rating is less than total, meaning less than 100 percent, a TDIU may be assigned if the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one rated at 40 percent or higher and the combined rating is 70 percent or higher.  38 C.F.R. § 4.16(a).  Disabilities resulting from common etiology and those affecting a single body system or both upper or lower extremities are considered one disability for purposes of determining whether these threshold minimum percentage requirements are met.  Id.  But even if the Veteran does not meet these threshold minimum percentage rating requirements, he can still receive a TDIU, albeit instead on a special extra-schedular basis under the alternative provisions of 38 C.F.R. § 4.16(b), if it is shown he is indeed unemployable owing to his service-connected disabilities.  In that circumstance, however, the Board is precluded from granting the TDIU in the first instance, having instead to refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension (C&P) Service for this initial consideration.  See Barringer v. Peake, 22 Vet. App. 242 (2008).  This does not, however, preclude the Board from determining whether this special consideration is warranted.  See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996).

The Veteran has been in receipt of service connection for a lumbar spine disability with an assigned 40 percent evaluation, effective March 7, 1991.  As this is his only service-connected disability, he has not met the schedular criteria for a TDIU at any point during the period on appeal, because he does not have a single disability rated at 60 percent or more and, the combined rating of his service-connected disabilities was not 70 percent or more.  Accordingly, as a matter of law, the Veteran does not meet the schedular criteria for a TDIU and the claim must be denied.  See 38 C.F.R. § 4.16(a); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit).  Notwithstanding this determination, the Board will address the issue of entitlement to a TDIU on an extraschedular basis in the Remand portion of this decision below.


ORDER

The claim of entitlement to an increased evaluation for the acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 level is denied.

The claim of entitlement to a TDIU on a schedular basis also is denied.


REMAND

The evidence of record reflects that the Veteran might have been unemployable due to his service-connected acute myositis of the lumbar spine, DJD at the L4-5 level, and DDD at the L5-S1 at some point during the period on appeal.  Specifically, the December 2008 VA examiner indicated that the Veteran last worked in 1988 in a machine and the examiner stated that the Veteran's back condition may prevent him from working.  Similarly, the February 2017 VA examiner stated that the Veteran's lumbar spine disability impacts his ability to work, but further indicated that he is fit for seated and/or sedentary work.  However, the examiner noted that the Veteran should otherwise avoid industrial activities that require prolonged standing or ambulation, frequent carry or lifting greater than 10 pounds or the industrial use of stairs or ladders.  At no point during the period on appeal has the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a), which means that a TDIU, if applicable, would need to be awarded on an extraschedular basis.

However, as noted above, the Board cannot consider entitlement to a TDIU on an extraschedular basis in the first instance.  Instead, the Board is required to refer all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria under 38 C.F.R. § 4.16 (a), to the Director for extraschedular consideration.  38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001).  Thus, as the Veteran has not met the schedular criteria for a TDIU, the Board finds that a remand is warranted to refer the TDIU claim to the Director for extraschedular consideration in the first instance.

Accordingly, this claim is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Request that the Veteran complete and return VA Form 21-8940 (an official TDIU application), providing his employment history with salary information and average hours worked, etc., from September 1, 2008 to the present.

2.  After completing the above and any other development deemed necessary by the AOJ, submit the claim to the Director of the Compensation Service for consideration of a TDIU on an extra-schedular basis.  If this claim remains denied, send the Veteran and his representative an SSOC and give them time to respond to it before returning the file to the Board for further appellate consideration of this claim.

The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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 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).



______________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

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