Citation Nr: 1754207	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  12-30 092	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an evaluation in excess of 10 percent for lumbosacral strain prior to January 10, 2013.  

2. Entitlement to a compensable evaluation for right hallux valgus.

3. Entitlement to a compensable evaluation for left hallux valgus.

4. Entitlement to a compensable evaluation for sinusitis with allergic rhinitis.

5. Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) prior to August 19, 2016, to include on an extraschedular basis.

6. Entitlement to a TDIU rating since to August 19, 2016.




REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and her niece


ATTORNEY FOR THE BOARD

M. Nye, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1976 to July 1980 and from July 1986 to June 1996.

This case comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  In that decision, the RO denied a disability rating higher than 10 percent for lumbosacral strain and denied compensable ratings for bilateral hallux valgus and sinusitis with allergic rhinitis.  The RO also denied ratings in excess of 10 percent for contracture of the gastrocsoleus muscles of the left and right ankles.  The Veteran appealed all of these rulings to the Board.  In a subsequent rating decision, the RO increased the rating assigned to the Veteran's lumbosacral strain from 10 percent to 40 percent, effective January 10, 2013.  

On August 17, 2015, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

All of claimed benefits in this appeal came before the Board in November 2015.  At that time, the Board determined that the additional issue of TDIU had been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  In its November 2015 decision and remand, the Board denied each of the increased rating claims listed on the title page and remanded the issue of TDIU for further development.   

The Veteran appealed the Board's November 2015 decision to the United States Court of Appeals for Veterans Claims (Court).  In March 2017, counsel for both parties filed a Joint Motion for Partial Remand (JMR), in which they agreed that certain portions of the November 2015 Board decision should be vacated.  

In the JMR, the parties agreed to vacate the Board's denial of a rating higher than 10 percent for lumbosacral strain prior to January 10, 2013, the denial of compensable ratings for bilateral hallux valgus and the denial of a compensable rating for sinusitis with allergic rhinitis.  The Veteran did not challenge the denial of a rating higher than 40 percent for lumbosacral strain since January 10, 2013 or the denials of ratings higher than 10 percent for contracture of the gastrocsoleus muscles of the left and right ankles.  Accordingly, the Court dismissed the appeal of those issues and they are no longer within the Board's jurisdiction. 

Because the issue of TDIU was on remand before the RO, and not part of the Veteran's appeal to the Court, the Court's order did not address the TDIU claim.  

As this decision will explain, the Board is granting the Veteran's TDIU claim effective August 19, 2016.  Because it is unclear whether she is eligible for a TDIU rating prior to that date, the issue of entitlement to TDIU prior to August 19, 2016, to include based on extraschedular consideration, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).




FINDINGS OF FACT

1. Before October 24, 2012, symptoms of service-connected lumbosacral strain approximated forward flexion of the thoracolumbar spine greater than 60 degrees and combined range of motion of the thoracolumbar spine greater than 120 degrees.

1. Between October 24, 2012 and January 10, 2013, symptoms of service-connected lumbosacral strain have approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.

2. The evidence is at least evenly balanced as to whether, between August 18, 2009 and January 10, 2013, the Veteran experienced flare-ups for 8 days, during which forward flexion of the thoracolumbar spine was less than 30 degrees.  

3. The evidence is at least evenly balanced as to whether the Veteran's right hallux valgus has been actually painful throughout the appeal period.

4. The evidence is at least evenly balanced as to whether the Veteran's left hallux valgus is actually painful throughout the appeal period.

5. The evidence is at least evenly balanced as to whether the Veteran's sinusitis with allergic rhinitis has manifested in three to six non-incapacitating episodes per year characterized by headaches, pain and purulent discharge or crusting, throughout the appeal period.  

6. Since August 18, 2015, the Veteran has had at least one disability rated at 40 percent or more and sufficient additional disabilities to bring her combined rating to 70 percent or more.  

7. The evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities have precluded her from performing gainful employment since August 19, 2016.


CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased rating of 20 percent, but no higher, for her service-connected lumbosacral strain have been met prior to January 2, 2013.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Code 5237 (2017).

2. Resolving reasonable doubt in the Veteran's favor, the criteria for an increased rating of 40 percent, but no higher, for her service-connected lumbosacral strain was met between January 2, 2013 and January 10, 2013.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.7, 4.21, 4.25, 4.30, 4.40, 4.45, 4.71a, Diagnostic Code 5237.

3. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for right hallux valgus have been met.  38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280 (2017).

4. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for left hallux valgus have been met.  38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5280.

5. Resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating for sinusitis with allergic rhinitis have been met.  38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.40, 4.45, 4.59, 4.97, Diagnostic Codes 6514 and 6522.

6. The criteria for a TDIU have been met since August 19, 2016.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 38 C.F.R. 3.102, 3.340, 3.341, 4.16 (2017).







REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans' Claims Assistance Act

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 and 3.326(a) (2016).  Because the Board is granted the Veteran's request for a TDIU rating since August 19, 2016, it is not necessary to analyze how the VCAA applies to that claim.  See Wensch v. Principi, 15 Vet. App. 362, 367-368 (2001).

Duty to Notify

The notice VCAA requires depends on the general type of claim the Veteran has made. "As a result, generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating."  Vasquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).

A claimant seeking an increased rating must be informed of the need to submit evidence showing an increase or worsening of his or her service-connected disability.  The claimant should be notified that, if an increase in disability is found, a disability rating will be determined by applying relevant regulations and that an effective date will be assigned.  See Vazquez-Flores v. Peake, 22 Vet. App. 37, 43-44 (2008), vacated on other grounds, Vazquez-Flores v. Shinseki, 580 F.3d 1270. With respect to his increased rating claims, the RO sent the Veteran a letter providing the required notice in September 2009.

Duty to Assist

VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim.  Service treatment records, post-service treatment records, and lay statements have been associated with the record.  The RO also obtained relevant records in the custody of the Social Security Administration (SSA).

The RO arranged for examinations of the Veteran's back in September 2009, April 2011 and January 2013, examinations of his feet in October 2009 and January 2013, and examinations of his sinuses in September 2009, February 2013.  During the development of the Veteran's TDIU claim, the RO arranged additional examinations of the relevant disabilities.  The Veteran's feet, spine and sinuses were examined in January 2016.  His back was examined again in October 2016.  In December 2016, there were additional examinations of the back and sinuses.  To clarify the diagnosis identified in the December 2016 VA sinus examination, the RO obtained an addendum report from the relevant examiner in February 2017.  

For reasons which will be explained below, the Board has identified certain weaknesses in some of the VA spine examination reports.  However, under the circumstances of this case, the duty to assist does not require a remand for a new examination or a retrospective medical opinion.  Instead, the Board finds that the most effective and efficient remedy for the deficiencies of the pre-January 2013 examination reports is to accelerate the previously assigned effective date for the Veteran's 40 percent rating for lumbosacral strain based on her credible testimony concerning the length and frequency of  her "flare-ups" - i.e., periods of time in when her lumbar spine symptoms were at their worst. 

As the Veteran has not identified additional evidence pertinent to the increased rating issue and as there are no additional records to obtain, no further assistance is required to comply with VA's duty to assist.


II. Increased Rating Claims

General Rating Principles

A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule 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 their residual conditions in civil occupations.  Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

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 for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

The assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology.  Any change in Diagnostic Code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

The Board may consider whether separate ratings may be assigned for separate periods of time - a practice known as "staged ratings," - whether or not the claim concerns an initial rating.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017).


Lumbosacral Strain Prior to January 10, 2013

The Veteran's lower back disability has been evaluated under Diagnostic Code 5237 (lumbosacral or cervical strain).  The General Formula for Diseases and Injuries of the Spine (General Formula) applies to this diagnostic code, unless it is appropriate to evaluate the disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  The Board will apply whichever method results in the higher rating.  See 38 C.F.R. § 4.71(a).

Under the General Rating Formula, a thoracolumbar spine injury is rated as follows: a 10 percent disability rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability 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 muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a.

The rating criteria further explain, under Note (1), that any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code.

Under 38 C.F.R. § 4.71a, Diagnostic Code 5243, an intervertebral disc syndrome may be rated under either the General Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  Under the Formula for Rating Intervertebral Disc Syndrome, incapacitating episodes having a total duration of least 2 weeks but less than 4 weeks during the past 12 months warrant a rating of 20 percent.  Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrant a 40 percent rating. Incapacitating episodes having a total duration of at least 6 weeks during the past 12 months warrant a 60 percent rating.

The Veteran was assigned an initial 10 percent rating for lumbosacral strain in 1997.  In September 2009, shortly after she applied for an increased rating, the RO arranged an examination.  The Veteran told the examiner that she experienced severe muscle spasms 3-4 times a month for 20-30 minutes at a time.  She said that she could walk for approximately 30 minutes at a time, or about a half mile.  According to the examiner, the Veteran's gait was normal and there was no ankylosis.  Forward flexion was zero to 70 degrees; extension was 30 degrees; left and right lateral flexion were 20 degrees, and left and right lateral rotation were also 30 degrees.  She complained of pain but not of fatigue, weakness, lack of endurance or incoordination.  There were no further limits to range of motion after repetitive testing and no sensory or motor impairment.  In the examiner's opinion, service-connected lumbosacral strain had a mild effect on the Veteran's usual occupation and daily activities.

In October 2010, the RO received written statements from the Veteran and from a co-worker, describing a flare-up of lower back pain.  According to these statements, the Veteran complained of "tremendous" pain from low back muscle spasms, which resulted in the Veteran leaving work.  She was able to return to work a few days later.  

The Veteran's back was examined again in April 2011.  The diagnosis was lumbar degenerative disc disease.  In her interview with the examiner, the Veteran complained of daily low back pain, the intensity of which she estimated as 8 on a scale of 1 to 10.  She reported flare-ups, in which her pain reached 10 out of 10, once a week, with each episode lasting 30-40 minutes.  The Veteran denied any physician-prescribed days of bedrest in the previous year.  

During the April 2011 back examination, the Veteran refused to flex or extend her back for fear of muscle spasms.  But according to the examiner, she was observed to actively flex forward to approximately 80 degrees while taking off and putting on her shoes.  On examination, left and right lateral flexion were 30 degrees.  Left and right lateral rotation were also 30 degrees without additional impairment after repetitive testing.  The examiner noted that an MRI of the low back in June 2010 had shown mild degenerative changes with mild bilateral neural foramen stenosis.  
In support of her claim, the Veteran submitted the report of a new patient consultation from a physician in private practice, dated October 24, 2012.  According to this report, the physician examined the Veteran's back and determined that she "has approximately 30 to 45 degrees of forward flexion with severe muscle spasms and low back pain."  The same physician wrote a letter on the Veteran's behalf, with the same date.  According to him, forward flexion of the cervical spine was greater than 30 degrees, but not greater than 60 degrees.  He also indicated the presence of muscle spasms severe enough to result in abnormal gait.  

The most recent back examination during the relevant appeal period took place in January 10, 2013.  At that time, forward flexion of the low back was to 20 degrees, extension was to 15 degrees, and lateral bending to each side and bilateral rotation were all to 10 degrees.  There was no additional impairment after repetitive testing.  Functional loss associated with the Veteran's back disability consisted of less movement than normal, pain on movement, and interference with sitting, standing, and/or weight bearing.  There was localized tenderness or pain to palpation.  There was no muscle atrophy or sensory loss.  The Veteran used a back brace and a cane.  The examiner noted that there was magnification of symptoms and a very low pain threshold.  When the examiner asked her about flare-ups, the Veteran said that these events caused her to miss work and that, as a result of flare-ups, she needed bed rest up to one week.  

As mentioned above, the Board previously denied a rating higher than 10 percent for lumbosacral strain prior to January 10, 2013.  In the parties' March 2017 JMR, they agreed that the Board's November 2015 decision erred in failing to address the October 24, 2012 records from the Veteran's private physician, which noted forward flexion greater than 30 degrees but less than 60 degrees.  

Also with respect to the increased rating claim for lumbosacral strain, the parties agreed that the Board failed to adequately discuss evidence of functional loss during flare-ups prior to January 10, 2013.  The JMR mentioned statements from the Veteran, dated February 2013, August 2010 and November 2009 as well as undated statements from people who know her, and also parts of the Veteran's hearing testimony.  
Having reviewed this evidence, particularly the records of the Veteran's private physician, it is clear that, as of October 24, 2012, forward flexion of her lumbar spine had diminished to between 30 degrees and 60 degrees.  These results meet the criteria for an increased 20 percent rating under the General Rating Schedule.

The available range of motion test results have varied in severity throughout the appeal period.  But there is no evidence that the Veteran's thoracolumbar spine has ever been fixed in flexion or extension at any time.  Accordingly, the Board finds that the Veteran's service-connected lumbosacral strain has not manifested in ankylosis of the lumbar spine at any time during the relevant appeal period.  See 38 C.F.R. § 4.71a., General Formula for Diseases and Injuries of the Spine, note (5) (defining ankylosis).

Prior to October 24, 2012, there is evidence of muscle spasms, pain and limited motion.  But there is no evidence that range of motion met the criteria for a rating higher than 10 percent.  

Although the Veteran has made statements that she required bed rest due to her back pain, the evidence does not suggest that bed rest was ordered by a physician.  Accordingly, she is not entitled to an increased rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

The General Rating Formula indicates that associated neurologic abnormalities are to be rated separately under the appropriate diagnostic code.  In this case, service connection was separately established recently for sciatic nerve impairment of both lower extremities, each of which is assigned a compensable rating.  The evaluations of these associated neurological symptoms are not before the Board.

Pursuant to the JMR, the Board must now consider whether a rating higher is authorized by 38 C.F.R. § 4.40, DeLuca v. Brown, 8 Vet. App. 202, 206 (1995) and Mitchell, 25 Vet. App. 32, 43 (2011).  Under these regulations and cases, when evaluating the severity of certain disabilities, including disabilities of the spine, VA is generally required to consider whether the disability resulted in a level of functional loss greater than that already contemplated by the assigned rating.  Relevant factors include weakness, fatigability, lack of coordination, restricted or excess movement of the joint, or pain on movement.  38 C.F.R. § 4.45.  Whenever possible, VA examiners assessing the nature of additional functional loss should describe any additional functional limitations, if possible, in terms of additional degrees of range of motion loss.  See Mitchell v. Shinseki, 25 Vet. App. 32, 33 (2011).  None of the VA examination reports include an attempt to describe functional loss in terms of additional degrees of range of motion loss.  

The available examination reports also have a second problem.  The Court recently decided that adequate range of motion test results include evaluating range of motion "for pain on both active and passive motion and in weight bearing and nonweight-bearing . . . ." Correia v. McDonald, 28 Vet. App. 158, 170 (2016).

It is not clear whether the pre-January 2013 examiners tested the range of motion in the Veteran's back on active or passive motion, or in weight bearing or nonweight-bearing.  

Because of the examiners' failure to comply with DeLuca and Mitchell, the most relevant examination reports, by themselves, do not provide sufficient information to apply 38 C.F.R. §§ 4.40 and 4.45.  The Board has therefore considered whether the duty to assist requires another remand for further development.  A new examination, however, would not be very useful in determining the severity of the Veteran's spine symptoms before January 10, 2013.  See 38 C.F.R. § 3.159(d) (2017).  Under the circumstances of this case, the Board finds that the most effective remedy for the deficiencies of the pre-January 2013 examination reports is to accelerate the assigned effective date for the 40 percent rating based on the Veteran's credible testimony concerning the length and frequency of flare-ups. 

According to the Veteran's statements to the September 2009 examiner, flare-up events occurred three or four times each month, lasting 20-30 minutes each.  There were 41 days - or approximately one and one third months between the date the RO received the increased rating claim (August 18, 2009) and the date of that examination (September 28, 2009).  Pursuant to 38 C.F.R. § 4.3 (2017), the Board will assume these flare-ups each lasted 30 minutes, rather than 20, and took place at a rate of 4 each month.  Rounding up, the Board will therefore assume that the Veteran experienced four hours of intense symptoms in August and September of 2009.  

During the VA examination dated April 27, 2011, the Veteran indicated that, by then, she was experiencing flare-ups more frequently.  She told the examiner that they occurred approximately once a week, lasting 30 to 40 minutes.  The October 2012 report of the Veteran's private physician does not indicate the frequency or duration of flare-ups.  The January 10, 2013 report, which necessarily reflects the Veteran's recollection of flare-ups before then, mentions loss of work and the need for bed rest of up to one week.  But it does not mention a change in the average duration or frequency of flare-ups.  Accordingly, with one exception which will be explained shortly, the Board will assume that, in her statements to the April 2011 examiner, the Veteran was describing the average length and duration of flare-ups between September 28, 2009 and January 10, 2013.  By assuming that the increase in severity described in April 2011 began immediately after the September 2011 examination, these assumptions maximize the benefit of reasonable doubt pursuant to 38 C.F.R. § 4.3.

There were 1220 days - or approximately 174 weeks - between September 28, 2009 and January 10, 2013.   The Veteran's statements to the April 2011 examiner suggest that, during this time, she experienced flare-up symptoms for 4.83 days.  Adding to this time the four hours of flare-up symptoms she experienced between August and September of 2009 (0.17 days), her April 2011 statements indicate she experienced flare-up symptoms for five days during the appeal period.   The Board will add to this total the unusually severe three-day flare-up that the Veteran described in her written statements as occurring the week of October 10, 2010.  

Although they are credible, the descriptions of flare-ups in the Veteran's August 2015 hearing testimony are not as relevant to the issue on appeal because they reflect the severity of her symptoms after January 10, 2015, the previously assigned effective date of her 40 percent rating.  

The Board will assume that, during the Veteran's flare-ups, her symptoms more closely approximated the criteria for a 40 percent rating than the criteria for a 20 percent rating.  DeLuca does not apply to the analysis for rating disabilities beyond the highest schedular evaluation based on limited motion when a higher evaluation requires ankylosis.  See Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  Since the criteria for a 20 percent rating for lumbosacral strain is not the highest schedular evaluation based on limited motion, only by accelerating the effective date of the higher 40 percent rating can the Board ensure that the failure of pre-January 2013 examiners to comply with Mitchell and Correia was harmless error.  This finding is consistent with the Veteran's credible descriptions of her flare-ups, which she described as extremely painful and accompanied by muscle spasms which made it difficult for her to drive.  

For these reasons, the rating for the Veteran's service connected lumbosacral strain will be increased from 10 percent to 20 percent, effective October 24, 2012, and from 20 percent to 40 percent, effective January 2, 2013.


Bilateral Hallux Valgus

The Veteran's left and right foot bunions (hallux valgus) have been rated noncompensably disabling throughout the relevant appeal period.  Hallux valgus is angulation of the great toe away from the midline of the body (toward the other toes) and can be caused by bunions.  Verdon v. Brown, 8 Vet. App. 529, 530 (1996).  The major findings for hallux valgus are pain or discomfort at the first metatarsophalangeal joint (the joint at the base of the great toe) or under the ball of the foot, deformity at that joint, and sometimes redness and swelling.  68 Fed. Reg. 7020 (February 11, 2003).

The Veteran has been assigned a noncompensable rating for hallux valgus of each foot under 38 C.F.R. § 4.71a, Diagnostic Code 5280 (2017).  This code authorizes the assignment of a 10 percent rating if hallux valgus is severe and equivalent to amputation of the great toe, or if it has been subject to surgical treatment with resection of the metatarsal head.  The 10 percent rating is the only evaluation under Diagnostic Code 5280.

During a foot examination in September 2009, the Veteran had bilateral hallux valgus with bunions.  There was normal active motion in the metatarsophalangeal joints of both big toes. The examiner noted mild difficulty with walking.

During the April 2011 foot examination, the Veteran had arthritic-appearing first metatarsophalangeal joints.  The diagnosis was bilateral hallux valgus.  There were 30 degrees of hallux valgus on the left and 15 degrees on the right.  Range of motion included left dorsiflexion to 22 degrees and plantar flexion to 17 degrees; right dorsiflexion to 40 degrees and plantar flexion to 23 degrees.  The Veteran complained of pain throughout the range of motion.  There was no additional impairment after repetitive testing. 

According to a VA podiatry report, dated, April 2012, the Veteran had hallux abductus with bunion deformity.

During a January 2013 foot conditions examination by a VA physician assistant, the Veteran complained of pain on light touch of the feet on the plantar surface, heel, and Achilles tendon.  The diagnosis was hallux valgus, for which the Veteran did not have a history of surgery.  The examiner's findings included small bunions; mild hallux valgus of 10 degrees; and a small, soft callus over the fifth metatarsal base on the lateral side of each foot.  X-rays of the feet revealed degenerative or traumatic arthritis and small heel spurs.  According to the examiner, the Veteran had mild to moderate symptoms on both sides.  The examiner noted that there was poor cooperation from the Veteran on examination of the feet and ankles for motor and strength.  The examiner further noted minimal objective findings on examination of the feet and opined that her primary problem appeared to be psychological.

The Veteran testified at her August 2015 travel board hearing that hallux valgus caused foot pain.

During development of the Veteran's TDIU claim, the RO arranged another foot conditions examination in January 2016.  The examining physician noted complaints of pain and swelling in both feet.  When standing, the Veteran felt a sensation similar to needles radiating from her feet into her legs.  She declined injections, which had been suggested by her podiatrist.  She used heel inserts, telling the examiner that they were helpful.  According to the examiner, "She describes pain in the first [metatarsophalangeal joint (MTP)] as sharp bilaterally.  The pain has progressed to the point that she is considering having surgery on the first MTP joints.  Review of recent medical records in CPRS reveals a request to Prosthetics on 11/06/2013 for new shoes for a diagnosis of [degenerative joint disease] of the first MTP joint bilaterally and hallux valgus."  

The Veteran described her pain as "sharp and stabbing.  It is constant, occurring even when she is non weight-bearing."  She did not report that flare-ups affected her feet condition.  The Veteran's pain was present in both feet and accentuated on use; pain was accentuated on manipulation.  But there was no indicating of swelling during use.  The Veteran did not have characteristic callouses.  Orthotics helped to relieve symptoms in both feet.  

Also according to the January 2016 examiner, there was no extreme tenderness in either foot's plantar surface.  There was no objective evidence of marked deformity of either foot.  The weight-bearing line did not fall over, nor was the weight-bearing line medial, to the great toe.  There was also no inward bowing of the Achilles tendon and no marked inward displacement or severe spasm of the Achilles tendon on manipulation.  

Like the previous foot conditions reports, the January 2016 report indicated that hallux valgus symptoms were mild or moderate in both feet.  The examiner noted tenderness of the first MTP joint bilaterally without soft tissue swelling.  For both feet, there was pain on physical examination, contributing to functional loss.  For both feet, contributing factors of disability were pain on weight-bearing, pain on non weight-bearing, swelling and disturbance of locomotion.  For both feet, pain significantly limited functional ability when used repeatedly over a period of time.  The Veteran constantly used a cane and occasionally used shoe inserts.  
Pursuant to the parties' March 2017 JMR, the Board's November 2015 denial of compensable ratings for bilateral hallux valgus was vacated because the Board failed to consider the possibility that, because both medical and lay evidence suggested the Veteran's feet were actually painful, a higher rating could be warranted under 38 C.F.R. § 4.59.  Citing Southall-Norman v. McDonald, 28 Vet. App. 346 (2016), the JMR required the Board to reconsider the Veteran's increased rating claims for hallux valgus to consider the potential application of 38 C.F.R. § 4.59.

38 C.F.R. § 4.59 "concerns painful motion of the musculoskeletal system generally."  Correia, 28 Vet. App. at 165.  "Section 4.59 is one of several regulations that precede the rating schedule for the musculoskeletal system and explain how to arrive at proper evaluations under the [diagnostic codes] appearing in the disability rating schedule."  Petitti v. McDonald, 27 Vet. App. 415, 424 (2015).  "The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."  38 C.F.R. § 4.59.  This regulation "ensures that a veteran experiencing an 'actually' painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate DC to the joint involved."  Petitti, 27 Vet. App. at 424. 

In Southall-Norman, the Court held that 38 C.F.R. § 4.59 applies to musculoskeletal disabilities involving actually painful, unstable or malaligned joints regardless of whether the diagnostic code under which the disability is evaluated is predicated on range of motion testing.  See Southall-Norman, 28 Vet. App. at 354.

The Court has cautioned that 38 C.F.R. § 4.59 does not provide an independent basis for a compensable rating.  See Sowers v. McDonald, 27 Vet. App. 472, 482-81 (2015).  Instead, the regulation must be read in conjunction with the applicable diagnostic code.  Id. at 479.  In Sowers, the Court rejected the appellant's argument that, under § 4.59, he was entitled to a compensable rating for painful motion of the right ring finger.  Id. at 477.  The Court rejected his argument because Diagnostic Code 5230 (limitation of motion of the ring or little finger) provides only a noncompensable rating.  

As the Court explained, "Reading § 4.59 in conjunction with DC 5230, [the appellant] is not entitled to a compensable rating under this DC.  Section 4.59 intends to recognize actually painful joints and provide at least the minimum compensable rating for the joint.  There is no minimum compensable rating under DC 5230, that is, any level of disability warrants a 0% rating.  DC 5230's specific finding that there is no impairment in earning capacity from any limitation of motion of the ring finger trumps the general intent of § 4.59 to compensate painful motion with at least the minimum compensable rating."  Id. at 480 (emphasis in original).

Unlike DC 5230 - the diagnostic code in Sowers - the applicable DC in this case does provide a compensable rating for hallux valgus.  The Veteran has consistently claimed that her left and right hallux valgus are actually painful.  Although the January 2013 VA examiner suggested that some of the Veteran's expressions of pain could be psychological, the January 2016 examiner noted that pain was present in both feet and accentuated on use and that pain was also accentuated on manipulation.  The Veteran herself is competent to describe her pain and, resolving reasonable doubt in her favor, the Board finds that right and left hallux valgus have actually been painful throughout the appeal period.  Accordingly, for both right and left hallux valgus, she is eligible for the minimum 10 percent rating under DC 5280.  

The Board has further considered whether even higher ratings for hallux valgus might potentially be available under another diagnostic code.  However, when a condition is specifically listed in the rating schedule, it may not be rated by analogy.  See Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015).  The 10 percent ratings the Board is granting are the maximum ratings authorized by DC 5280.  





Sinusitis with Allergic Rhinitis

In April 1997, the RO granted service connection for sinusitis with allergic rhinitis.  The Veteran's currently assigned noncompensable evaluation has been in effect since June 1996.  

Sinusitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6514 (2017), which authorizes a noncompensable rating for sinusitis detected by x-ray only; a 10 percent rating is authorized when sinusitis is manifested by one or two incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment or three to six non-incapacitating episodes per year characterized by headaches, pain, purulent discharge or crusting; a 30 percent rating is authorized if sinusitis is manifested by three or more incapacitating episodes per year requiring prolonged (lasting four to six weeks) antibiotic treatment or by more than six non-incapacitating episodes per year characterized by headaches, pain, purulent discharge or crusting; and a 50 percent rating is authorized for sinusitis following radical surgery with chronic osteomyelitis or manifested by near constant sinusitis characterized by headaches, pain, and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries.  An incapacitating episode of sinusitis is one requiring bed rest and treatment by a physician.  See 38 C.F.R. § 4.97.

The Veteran has also been diagnosed with allergic rhinitis.  Under DC 6522, allergic or vasomotor rhinitis with polyps is evaluated as 30 percent disabling. When there are no polyps, but there is greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side, a 10 percent evaluation is warranted.  38 C.F.R. § 4.97, DC 6522.

When the Veteran was examined for sinusitis in September 2009, she complained of pain, headaches, crusting, discharge, interference with breathing through her nose, and episodes of vertigo, dizziness, vomiting, and sneezing.  She told the examiner that her symptoms occurred twice a month or more year round.  She reported an episode of doctor-recommended bed rest once a month and episodes that did not require prolonged treatment approximately 12 times a year.  Physical examination revealed allergic or vasomotor rhinitis.  There was no nasal obstruction.  There was maxillary sinusitis with tenderness, but no purulent discharge or crusting.  According to the examiner, this condition had a mild effect on the Veteran's usual occupation and daily activities.

VA outpatient treatment reports dated from October 2009 through March 2013 do not include evidence of active sinusitis with complaints of headaches and pain or reports of purulent discharge or crusting.

A CT scan of the sinuses in December 2012 was unremarkable except for a small mucous retention cyst in the left sphenoid sinus.  During a February 2013 VA examination, the Veteran's previous diagnoses for sinus conditions were identified as chronic sinusitis and allergic rhinitis.  According to the examiner, the initial date of both diagnoses was during active duty.  But the examiner wrote that there was "no [history] of chronic or recurrent sinusitis."  The only current condition identified on examination was rhinitis.  The examiner indicated "no" next to text asking him to indicate whether the Veteran experienced more than 50 percent obstruction of the nasal passages on both sides due to rhinitis.  The examiner likewise indicated that rhinitis did not cause complete obstruction on one side.  There was no permanent hypertrophy of the nasal turbinates.  According to the examiner, there were also no nasal polyps.  

The Veteran testified at her travel board hearing in August 2015 that one side of her sinuses was normally "blocked up."

Another VA sinus examination took place in January 2016.  The diagnosis was 
allergic rhinitis, first diagnosed in service.  Part II ("Medical History") indicates "Veteran reports having chronic nasal crusting and congestion which impairs her ability to breathe, particularly at night.  She states this is year round and not triggered by any known environmental factors.  Use of antihistamine tablets and prescribed nasal sprays provide some improvement with the symptoms and she utilizes these on a daily basis, sometimes using OTC brands."  

According to the examiner, the Veteran's nasal passages did not have an obstruction greater than fifty person on both sides due to rhinitis.  Moreover, there was not a complete obstruction of either side due to rhinitis.  The examination findings included "mildly erythematous and hypertrophies turbinates bilaterally; mild crusting on the right with mild bilateral tenderness on palpation over frontal and maxillary sinuses."  

Assessing the potential influence of rhinitis on the Veteran's ability to work, the examiner wrote, "Veteran reports flare in symptoms would negatively impact concentration and interfere with sleep at night causing daytime sleepiness and a reduced level of alertness.  Ability to perform job duties was not significantly impacted."  

The most recent sinus examination took place in December 2016.  Once again, the diagnosis was allergic rhinitis.  Section II of the report ("Medical History") indicates that the Veteran had recently visited an allergist, who told her to stop using steroid nasal spray.  At the time of the examination she was taking Claritin, saline solution, and eye drops for itching eyes.  The Veteran told the examiner that her allergies bother her year round.  "She reports she frequently can't breathe through her nose and has to breathe through her mouth.  She states she feels like she has chronic sinus problems but [an ear nose and throat evaluation] several years ago included a [CT scan] of sinuses that did not show sinus disease.  She does not go to doctor when she has what she thinks is a sinus infection."  

Unlike the January 2016 examiner, the December 2016 examiner reported that there was an obstruction of the nasal passage on both sides due to rhinitis and that the obstruction affected more than 50 percent on both sides.  According to the examiner, the obstruction was not complete in either side.  Once again, there were no nasal polyps.  There was no permanent hypertrophy of the nasal turbinates.  The examiner indicated "no" in response to the question: "Does the Veteran have any other pertinent findings, complications, conditions, signs or symptoms related to the conditions listed in the Diagnosis Section above?"  

The most Veteran's recently obtained medical records include a VA allergy and immunology clinic note, dated June 2016.  This note records complaints that the Veteran's nose was clogged and that the Veteran was having trouble breathing through both nasal passages.  She reported having a "crusted" and "clogged" nose at night, interfering with her sleep.  The note indicates that the Veteran believes these were symptoms of sinus infection, which included headaches.  The note indicates that episodes of sinus infection lasting one week occurred approximately four or five times each year.  

The Board denied a compensable rating for sinusitis in November 2015.  In the March 2017 JMR, the parties agreed to vacate that finding.  Specifically, in its November 2015 decision, the Board found that there was no objective evidence of 1 or 2 incapacitating episodes requiring prolonged antibiotic treatment or of 3 to 6 non-incapacitating episodes per year characterized by headaches, pain and purulent discharge or crusting.  This finding was based on the absence of medical records describing such episodes.  In the March 2017 JMR, the parties agreed that this reasoning violated Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  In Buchanan, the Court held that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  Id. at 1337.

Based on the December 2016 examination findings, the Veteran is eligible for a 10 percent rating under DC 6522 for greater than 50 percent obstruction of the nasal passage on both sides.  38 C.F.R. § 4.97, DC 6522.  According to the Veteran's written statements and hearing testimony, similar symptoms existed previously.  

With respect to DC 6514, the description of symptoms stated in the June 2016 VA allergy and immunology clinic note closely resembled the rating schedule's description of non-incapacitating episodes.  The Veteran made similar written statements prior to this date, but those do not indicate the duration or frequency of her symptoms.  The note reported that similar incidents occurred approximately four or five times each year since the 1970s.  Three to six non-incapacitating episodes per year episodes approximate the criteria for a 10 percent rating.  38 C.F.R. § 4.97, DC 6514.  The Board has also considered the contrary findings of VA examiners prior to December 2016.  According to VA examination reports dated February 2013 and January 2016, there was no nasal obstruction.  Those examinations reports did not indicate whether or not there had been non-incapacitating episodes for the purpose of DC 6514, apparently because the respective examiners did not consider it necessary to do so after having indicating that the correct diagnosis was allergic rhinitis, rather than sinusitis.  

Because service-connection has been granted for both sinusitis and rhinitis, it is permissible to rate the Veteran's disability using either set of criteria.  Because she has consistently made statements indicating the existence of non-incapacitating episodes and because the December 2016 VA examiner eventually discovered the kind of symptoms which the earlier examiner had not encountered, it is reasonable to believe that the Veteran's June 2016 statement is credible and that previous examinations accidentally coincided with periods in which the Veteran's sinusitis with allergic rhinitis was not symptomatic.  The Board understands that in earlier statements to examiners - particularly when she said that episodes of nasal obstruction, headaches and crusting were year-round - the Veteran suggested that these symptoms occurred more often.  On this issue, the Board finds that the most credible version is the one the Veteran provided to her allergist in June 2016.  Her previous versions are inconsistent with the failure of VA examiners to notice symptoms prior to December 2016.  

With respect to whether non-incapacitating episodes have existed at all, however the Board will resolve reasonable doubt in the Veteran's favor.  Consistent with this principle, the Board finds that the Veteran has met the criteria for a 10 percent rating throughout the relevant appeal period.  Her claim for a rating higher than 10 percent for sinusitis with allergic rhinitis is denied, because the criteria for higher ratings are inconsistent with both the examination findings and the Veteran's statements to VA medical personnel in June 2016. 





III. TDIU

VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his or her education and occupational experience.  See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017).  The regulations provide that, if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Marginal employment is not considered substantially gainful employment.  Id.

The Veteran has 13 service-connected disabilities: (1) major depressive disorder with panic attacks (rated 30 percent disabling from August 18, 2015 and 70 percent since April 28, 2016); (2) lumbosacral strain 40 percent since January 10, 2013); (3) - (4) contracture of gastrocsoleus muscle with the left and right ankles (10 percent for the right 10 percent for the left); (5)-(6) sciatic nerve impairment of the bilateral lower extremities secondary to lumbar strain (10 percent for the right and 10 percent for the left); (7)-(8) gastrosoleus muscle strain of the bilateral knees (10 percent for the left and 10 percent for the right knee); (9)-(10) bilateral hallux valgus; (11) sinusitis with allergic rhinitis; (12) fibrocystic breast disease (noncompensable); (13) acne (noncompensable).   

Before today's decision, the Veteran met the criteria schedular criteria under 38 C.F.R. § 4.16(a) only for the period since August 18, 2015.  As a result of the Board's decision to grant 10 percent ratings for right and left hallux valgus, a 10 percent rating for sinusitis with allergic rhinitis, and to move forward the previously assigned effective date for the Veteran's 40 percent rating for lumbosacral strain, she now meets the criteria of 38 C.F.R. § 4.16(a) since January 2, 2013.  

Following the Board's November 2015 remand, the AOJ obtained additional information on the Veteran's work history and ability to work. Specifically, the AOJ asked the Veteran to complete a VA Form 21-8940 ("Veteran's Application for Increased Compensation Based on Unemployability"), which she returned in April 2016.  According to the form, between April 2006 and October 2014, the Veteran worked for the Texas Veterans Commission as a Veteran's representative for 40 hours per week.  In her las full year of work, she earned $40,000.  

At the Travel Board hearing, the Veteran said that she resigned her job because of her back disability and because of anxiety associated with work.  She attributed her anxiety to not having enough vacation days and sick days after missing work due to her physical disabilities.  

The RO obtained records from the Social Security Administration (SSA), including an independent medical examination report, dated November 2015.  According to the examiner, due to her back pain, the Veteran was limited to walking one block and was unable to stand for more than 30 minutes.  Sitting was limited to periods between 15 and 30 minutes.  Due to joint pain in the Veteran's feet, knees, ankles and hips, the examiner described the Veteran as limited to walking 1 block, standing 15-20 minutes and climbing 4 steps."  

Pursuant to the Board's remand instructions, the RO obtained additional opinions on the effect of individual disabilities on the Veteran's ability to work.  According to the January 2016 VA foot conditions examination report, the bilateral hallux valgus condition had a moderate adverse impact on her functional capacity but did "not render the veteran incapable of maintaining substantially gainful employment.   A sedentary position is medically feasible."  With respect to the Veteran's multiple musculoskeletal conditions, taken in combination, the same examiner likewise indicated a moderate adverse impact but, according to the examiner, "A sedentary position is medically feasible with frequent breaks to allow her to change position and move around.  She would not be able to perform a job requiring prolonged standing or walking due to her service-connected conditions."  The RO received similar opinions concerning the other musculoskeletal disabilities.  The January 2016 VA spine examiner wrote that the Veteran's job for the Texas Veterans' Commission was primarily a sedentary job, except when she would need to attend job fairs.  "The job fairs would typically require her to spend considerable time on her feet, which exacerbated her back pain."
According to a subsequent VA spine examination report, the Veteran's back disability "would limit work that requires repetitive prolonged, bending, stooping, walking and standing.  It would not limit sedentary work if [the Veteran] were afforded frequent breaks."  In December 2016, the most recent VA spine examiner wrote that the Veteran "could not work a physically demanding job or one that required her to sit for prolonged periods."  

In addition to her back, feet, knee and ankle disabilities, the Board's TDIU analysis must consider the effects of a service-connected psychiatric disability.  According to a November 2015 psychological examination report, the diagnosis was depressed mood with anxiety and situational panic attacks.  According to the psychologist, her symptoms at that time most closely approximated the criteria for a 50 percent rating under 38 C.F.R. § 4.130 (2017) - i.e., occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.  

On August 19, 2016, the Veteran was once again examined by a psychologist.  This report described more numerous and severe psychologist symptoms.  The diagnosis was major depressive disorder, moderate, with panic attacks.  In the examiner's opinion, the symptoms fit the 70 percent criteria.  The Veteran's specific symptoms were depressed mood, anxiety, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances including work or a work like setting and inability to establish and maintain effective relationships.  

Until October 2014, the Veteran successfully maintained a full-time job, for which her earned income exceeded the poverty threshold for one person.  In other words, her work prior that time amounted to substantially gainful employment.  See 38 C.F.R. § 4.16(a).  Since that time, numerous medical professionals have indicated that, while her physical disabilities would prevent physically demanding work, sedentary employment was still feasible.  

Nevertheless, the Board finds that the evidence meets the criteria for TDIU since August 19, 2016 at the latest.  The Board reaches this conclusion for two reasons.  First, although at one time she was apparently well-suited to perform the duties of a sedentary job, the November 2015 SSA independent medical examination revealed that sitting was limited to periods of between 15 and 30 minutes.  The December 2016 VA spine examiner wrote that the Veteran "could not work a physically demanding job or one that required her to sit for prolonged periods."  This evidence makes it doubtful whether the Veteran remained capable of sedentary work.  Secondly, the August 2016 psychological examination report revealed the presence of previously undisclosed symptoms which would clearly make it difficult to work a full-time job.  Perhaps most importantly, the examiner noted that the Veteran experienced near-continuous panic or depression affecting the ability to function independently, appropriately and effectively.  When combined with the effects of her numerous physical disabilities, it is at least as likely as not that, since August 19, 2016, these service-connected psychiatric symptoms have prevented her from securing and following substantially gainful employment.  


ORDER

Entitlement to an evaluation in excess of 10 percent for lumbosacral strain prior to October 24, 2012 is denied.

Entitlement to an increased evaluation of 20 percent, but no higher, for lumbosacral strain is granted between October 24, 2012 and January 2, 2013.

Entitlement to an increased evaluation of 40 percent, but no higher, for lumbosacral strain is granted effective January 2, 2013.

Entitlement to a 10 percent evaluation for right hallux valgus is granted.

Entitlement to a 10 percent evaluation for left hallux valgus is granted.

Entitlement to a 10 percent evaluation for sinusitis with allergic rhinitis is granted.

Entitlement to a TDIU rating since August 19, 2016 is granted.


REMAND

Unfortunately further development is needed before the Board can decide whether the Veteran is entitled to a TDIU rating before August 19, 2016.  With respect to this question, it is significant that, before August 2015, her psychiatric disability was not service-connected and, prior to January 2013, she did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a).  

Referral for consideration of an extraschedular TDIU is appropriate when the Veteran may be unemployable by reason of service-connected disabilities, but the ratings for those disabilities do not meet the schedular rating criteria.  See 38 C.F.R. § 4.16(b).  Under such circumstances, the regulation requires submission of the case to the Director of the Compensation Service for consideration of an extraschedular rating.  Id.

The Board has jurisdiction to review the Director's denial of an extraschedular rating and to review the adequacy of an extraschedular rating assigned by the Director.  See Kuppamala v. McDonald, 27 Vet. App. 447, 457-58 (2015).  The Board does not, however, have jurisdiction to award an extraschedular rating in the first instance - in other words, the Board may not award an extraschedular rating until after the issue of an extraschedular rating has been referred to, and been considered by, the Director of the Compensation Service.  See Id. at 456; Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996).

Part four of the Board's November 2015 remand instructions ordered the RO to "refer the claim for extra-schedular TDIU to the Director of Compensation as described in 38 C.F.R. § 4.16(b)."  The claims file suggests, however, that the RO never referred this issue to the Director.  According to a February 2016 rating decision, which denied TDIU, "This case has not been submitted for extra-schedular consideration for entitlement to individual unemployability prior to 8/18/15 because the evidence fails to show that you are totally unemployable due solely to service connected disabilities."  

Because the issue of extraschedular TDIU has not yet been considered by the Director, the Board still lacks jurisdiction to consider that issue on its merits.  The Board is also required to remand the issue of extraschedular TDIU to enforce compliance with its prior remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998).

Accordingly, the case is REMANDED for the following action:

1. After completing any additional development deemed necessary, the AOJ should refer the issue of TDIU to the Director of the Compensation Service for further consideration of entitlement to TDIU prior to August 19, 2016, including on an extraschedualar basis.  The AOJ should send the Director the entire claims file, including the information obtained from the Social Security Administration (SSA). If the Director finds that the Veteran is not entitled to a TDIU on an extraschedular basis, the Director should issue a memorandum explaining the reasons for his decision and a summary of the evidence considered.    

2. If the appeal remains denied, send the appellant and her representative a supplemental statement of the case (SSOC) and give her an opportunity to submit additional evidence and/or argument before returning the file to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter 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).



____________________________________________
ROBERT C. SCHARNBERGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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