Citation Nr: 1761195
Decision Date: 12/29/17 Archive Date: 01/02/18

DOCKET NO. 11-13 423 ) DATE
)
)

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

THE ISSUES

1. Entitlement to an initial rating in excess of 10 percent prior to July 22, 2015, and in excess of 20 percent thereafter, for lumbosacral spine strain with spondylolisthesis and degenerative joint disease.

2. Entitlement to an extraschedular rating for hypertension, currently evaluated as noncompensably disabling.

3. Entitlement to an extraschedular rating for hypertensive heart disease, evaluated as 10 percent disabling prior to January 17, 2013 and as 60 percent disabling thereafter.

4. Entitlement to an extraschedular rating for chronic diverticulosis, currently evaluated as 10 percent disabling.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

G.C., Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from April 1979 to June 1992.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In September 2014, the Board denied entitlement to an initial rating in excess of 10 percent for chronic diverticulosis, denied entitlement to a compensable rating for hypertension, and granted entitlement to an initial rating for hypertensive heart disease of 10 percent prior to January 17, 2013, and of 60 percent thereafter. The Veteran appealed the September 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2015, the parties filed a joint motion for partial remand (JMPR), agreeing to remand the issues of entitlement to an extraschedular rating for hypertension, hypertensive heart disease, and chronic diverticulosis to the Board.

In August 2015, the Board determined that referral for extraschedular consideration was not warranted for the Veteran’s hypertension, hypertensive heart disease, and chronic diverticulosis. The Veteran again appealed the August 2015 Board decision to the Court. In February 2017, the Court found inadequate the Board’s reasons and bases supporting its determination that referral for extraschedular consideration was not warranted, and remanded the claim to allow the Board to readdress the matter.

In an August 2017 decision, the Board remanded the issues of hypertension, hypertensive heart disease and chronic diverticulosis for further development, to include referral to the Director for Compensation Service as well as obtaining the Veteran’s employment records and associating them with the claims file.

The issue of entitlement to an initial rating in excess of 10 percent prior to July 22, 2015, and in excess of 20 percent thereafter, for lumbosacral spine strain with spondylolisthesis and degenerative joint disease was remanded by the Board in January 2017 for further development, to include a VA examination. The Veteran underwent a VA examination in March 2017. This issue is now properly before the Board.

The Board acknowledges that the issue of entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome was addressed in a July 2017 supplemental statement of the case (SSOC). However, the Board notes that the aforementioned SSOC mistakenly reviewed the issue, as it did not have jurisdiction to do so. Specifically, the Board denied the Veteran’s knee claim in a January 2017 decision, and jurisdiction for review of a Board decision lies solely with the Court. See 38 U.S.C. §§ 7104, 7252 (2012). As such, the issue of entitlement to an initial rating in excess of 10 percent for right knee patellofemoral pain syndrome is not before the Board.

The issues of entitlement to an extraschedular rating for hypertension, hypertensive heart disease and chronic diverticulosis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1. Prior to July 22, 2015, lumbosacral spine strain was productive of limitation of forward flexion to 80 degrees, but not of ankylosis, limitation of flexion to 60 degrees or less, incapacitating episodes, or associated neurological conditions.

2. From July 22, 2015, lumbosacral spine strain was productive of limitation of forward flexion to 50 degrees, but not of unfavorable ankylosis, incapacitating episodes, or associated neurological conditions.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 10 percent for a lumbosacral spine strain with degenerative joint disease and spondylolisthesis prior to July 22, 2015, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237 (2017).

2. The criteria for a rating in excess of 20 percent for a lumbosacral spine strain with degenerative joint disease and spondylolisthesis for the period on and after July 22, 2015, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DC 5237 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA must provide claimants with notice and assistance in substantiating claims for benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b)(1).

The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Increased Ratings – Laws and Regulations

Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran’s ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10.

In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that a Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

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. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging” the ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2008); Fenderson v. West, 12 Vet. App. 119 (1999).

Lumbosacral Spine Strain

For the initial rating period prior to July 22, 2015, the Veteran’s lumbar spine disability has been rated at 10 percent under 38 C.F.R. § 4.71a, DC 5237 under the General Formula for Diseases and Injuries of the Spine for limitation of forward flexion to 80 degrees. For the rating period from July 22, 2015, the lumbar spine disability has been rated at 20 percent under 38 C.F.R. § 4.71a, DC 5237 under the General Formula for Diseases and Injuries of the Spine for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned 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 rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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 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 rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243).

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1.

Intervertebral Disc Syndrome (IVDS) (preoperatively or postoperatively) may be evaluated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined.

The Formula for Rating IVDS Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months warrants a 10 percent rating. Incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months warrants a 20 percent rating. Incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating. A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician.

The Veteran contends that a rating in excess of 10 percent is warranted for the period from October 16, 2008 to July 22, 2015, and that a rating in excess of 20 percent is warranted for the period from July 22, 2015. The Veteran states that a higher rating is warranted as his back condition is productive of flare ups resulting in abnormal gait with muscle spasm and reduced range of motion. See November 2016 Appellate Brief.

Lumbar Spine Rating from October 16, 2008 to July 22, 2015

For the initial rating period prior to July 22, 2015, the Veteran’s lumbar spine disability was rated at 10 percent under DC 5237 based on forward flexion limited to 80 degrees. After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the disability picture associated with the lumbar spine disability more closely approximated a rating in excess of 10 percent under DC 5237 for the portion of the rating period prior to July 22, 2015.

Because the evidence shows no compensable manifestation of IVDS for the initial rating period prior to July 22, 2015, the Board finds that the Veteran’s lumbar spine disability is appropriately rated under the General Formula for Diseases and Injuries of the Spine, rather than rating under the Formula for Rating IVDS Based on Incapacitating Episodes. See July 2009 and January 2013 VA medical examination reports (noting the Veteran denied any incapacitating episodes in the last year, and finding no IVDS).

The Veteran was afforded a VA examination in July 2009. He reported chronic, daily pain in the lower back which does not radiate. He further indicated that there were no incapacitating episodes in the past 12 months. In fact, the examination reflects that the Veteran was not receiving any treatment for his low back condition. The report notes forward flexion to 80 degrees, posterior extension to 20 degrees, and lateral flexion and rotation to 20 degrees with no end-range pain. The report also notes that repetitive-use testing did not result in any further restriction. The Veteran’s gait was slightly antalgic, and flare ups were noted to affect the Veteran when walking up stairs. Nonetheless, no impact on daily activities was noted. Also significantly, the Veteran was afforded a neurological examination, and the examiner indicated both lower extremities were intact. Furthermore, the examiner indicated that the Veteran did not have IVDS.

In February and August 2012, physical examinations at VA medical centers reflect that the Veteran had chronic, intermittent low back spasm, treated with Flexeryl, and rated as 8/10.

The Veteran was afforded another VA examination in January 2013. The Veteran’s diagnosis of a lumbosacral strain was confirmed, and added to that diagnosis was spondylolisthesis grade I L5 on S1 with degenerative changes as well as spondylosis of the thoracic spine. The Veteran reported having pain since his in-service injury, but reported no flare-ups. Range of motion testing revealed forward flexion to 80 degrees with pain at 60 degrees, posterior extension to 25 degrees with pain at 15 degrees, and lateral flexion and rotation to 30 degrees with no end-range pain. The report also notes that repetitive-use testing did not result in any further restriction. Functional impairment was noted, however, including restricted movement, incoordination, pain on movement, disturbance of locomotion, and interference with sitting, standing and/or weight bearing. No guarding or muscle spasm were noted, and the examiner did not find the Veteran’s gait to be abnormal. Muscle strength testing showed normal strength throughout, and no muscle atrophy was noted. In addition, a reflex and sensory examination were both normal. No radiculopathy was noted, nor were any other neurologic abnormalities. Furthermore, the examiner indicated that the Veteran did not have IVDS.

In March 2013, VA treatment notes indicate that during a routine checkup, the Veteran complained of low back pain. The severity reported was 8, and was described as “aching” by the Veteran, though no radiating was indicated.

Between the January 2013 VA examination and July 2015, the record does not contain evidence of any significant changes in the Veteran’s back condition.

The Board acknowledges, however, the Veteran’s lay statements of back pain and disagreement with the rating received. In February 2010, the Veteran stated that his back strain was being treated at VA and had caused loss of work time, which implies an impact on activities of daily living. The Veteran also reported pain, weakness and lack of endurance.

Upon review of the evidence of record, the Board finds that throughout the period prior to July 22, 2015, the Veteran’s lumbar spine disability did not manifest symptoms or impairment more nearly approximating a schedular rating in excess of 10 percent, including forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the 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. The range of motion measurements detailed above demonstrate that ankylosis was not present for the portion of the rating period from October 16, 2008 to July 22, 2015. Treatment records do not show ankylosis of the spine, and neither the Veteran nor the representative contend that the Veteran has ever had ankylosis of the spine. Because the preponderance of the evidence is against the appeal for an initial rating in excess of 10 percent for the portion of the rating period prior to July 22, 2015, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.

Lumbar Spine Rating from July 22, 2015

For the period from July 22, 2015, the lumbar spine disability has been rated at 20 percent under DC 5237 based on forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees. After review of the lay and medical evidence of record, the Board finds that the preponderance of the evidence is against a finding that the disability picture associated with the lumbar spine disability more closely approximates a rating in excess of 20 percent under DC 5237 for the portion of the rating period from July 22, 2015, and that the criteria for a 40 percent rating under DC 5237 for the lumbar spine disability have not been met or more nearly approximated.

The evidence of record indicates some manifestations of IVDS. Specifically, the July 2015 examination reflects the examiner’s assessment that the Veteran does have IVDS. However, September 2016 and January 2017 VA examinations both conclude that the Veteran does not have IVDS. Furthermore, there is no examination or report of record which reflects that the Veteran had any incapacitating episodes due to IVDS. Because the evidence shows no compensable manifestation of IVDS for the rating period after July 22, 2015, the Board finds that the lumbar spine disability is appropriately rated under the General Formula for Diseases and Injuries of the Spine, rather than rating under the Formula for Rating IVDS Based on Incapacitating Episodes.

The Veteran was evaluated in a July 22, 2015 VA examination. The examiner indicated that the entire claims file was reviewed. The Veteran claimed his lower back pain was intermittent, and noted when sitting for more than 30 minutes, doing yard work, or lifting more than 40 pounds. The Veteran’s job was reported as a corrections guard, and his low back condition was noted to slow him down at work and while taking care of things around the house. Range of motion testing revealed forward flexion to 60 degrees, posterior extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 35 degrees, left lateral rotation to 30 degrees and no end-range pain noted. The report also noted that repetitive-use testing did not result in any further restriction. The examiner noted that there was pain on weight bearing. No guarding or muscle spasm was noted. Muscle strength testing and a sensory exam were normal. No radiculopathy, ankylosis or any other neurologic abnormalities were found.

The Board notes that while the examiner left blank in the diagnosis section of the examination the question of whether the Veteran is currently or has been diagnosed with IVDS, it is indicated under the IVDS section of the examination that the Veteran does indeed have IVDS. However, the examiner also indicated that the Veteran has not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician in the past 12 months. The examiner also indicated that diagnostic testing was reviewed, and specifically, February 2005 radiography which showed a Grade I spondylolisthesis with bilateral spondylosis. Finally, the examiner noted that the Veteran had not sought medical care for acute back flare ups in the past 12 months.

The Veteran again underwent a VA examination in September 2016. Noted diagnoses were degenerative arthritis of the spine and spondylolisthesis. The Veteran reported continued use of ibuprofen about every other day and methocarbamol two to three times a week for his back symptoms. He also stated he has not had any surgery, injections or recent physical therapy. The Veteran reported flare ups three times weekly, and that he is unable to carry anything heavy, sit, walk, or stand for long periods of time. Range of motion testing revealed forward flexion to 60 degrees, posterior extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 30 degrees. Pain was noted to cause functional loss. The report also notes that repetitive-use testing did not result in any further restriction. The examiner noted that there was pain on weight bearing. While no muscle spasm was noted, the Veteran was found to have guarding, which nonetheless does not result in an abnormal gait or abnormal spinal contour. Muscle strength testing and a sensory examination were largely normal. No radiculopathy, ankylosis or any other neurologic abnormalities were found. The examiner also noted that the Veteran does not have IVDS.

August and December 2016 VA treatment notes show that the Veteran was being treated for chronic, intermittent low back spasms with acetaminophen.

The Veteran again underwent a VA examination in March 2017. The examiner indicated that the entire claims file was reviewed. Also indicated is that the Veteran now has or has previously been diagnosed with intervertebral disc syndrome, and the diagnosis specified is degenerative disc disease dating from the Veteran’s service. The examiner noted that this examination is the third in less than two years, and that there is no new or material evidence to review concerning the Veterans’ low back condition. The Veteran did not report flare-ups. However, he reported being unable to walk for more than 5 minutes, stand more than 10 minutes, and carry more than 10 pounds. Range of motion testing revealed forward flexion to 50 degrees, posterior extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, left lateral rotation to 20 degrees. End-range pain was noted. The report also notes that repetitive-use testing did not result in any further restriction. The examiner noted that there was no pain on weight bearing. No guarding or muscle spasm was noted. Muscle strength testing and a sensory exam were largely normal. No radiculopathy, ankylosis or any other neurologic abnormalities were found. The examiner also noted that the Veteran does not have IVDS.

Furthermore, diagnostic testing was reviewed, including March 2017 x-rays which revealed degenerative changes at L5-S1, degenerative sclerotic changes at L4-5 and L5-S1 and minimal osteophyte formation of the upper endplate of L3 anteriorly. Pertinently, the examiner indicated that at the time of examination, the Veteran was in the process of recovering from gastric cancer treatment with major surgery twice and chemotherapy with radiation therapy. Also noted was that all information in the examination was based on self-reported complaints. The extreme nature of the Veteran’s gastric cancer surgery and treatments were noted to likely affect the entire examination, as the examiner was unable to separate cancer-related residuals such as neuropathy and overall weakness from isolated low back pain findings.

March 2017 VA records show that back x-rays revealed no new or concerning findings, and that the Veteran’s back condition was unchanged.

Throughout the rating period, the lumbar spine disability did not manifest symptoms or impairment more nearly approximating a schedular rating in excess of 20 percent, including forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The range of motion measurements detailed above demonstrate that ankylosis was not present for this rating period. VA treatment records do not show ankylosis of the spine, and neither the Veteran nor the representative contend that the Veteran has ever had ankylosis of the spine. Furthermore, the July 2015 VA examination shows that the Veteran was working as a corrections guard at the time. In consideration of the foregoing, the Board finds that an initial rating in excess of 20 percent for the period after July 2015 is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7.

Consideration of Separate Ratings for Neurological Abnormalities

The Board has also considered whether there are any objective neurologic abnormalities associated with the Veteran’s service-connected lumbar spine disability that warrant a separate rating. See 38 C.F.R. §§ 4.14, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The Board finds that the weight of the evidence is against a finding of any separately diagnosed chronic neurological abnormality; therefore, a separate rating for neurologic abnormalities associated with the Veteran’s service-connected back disability is not warranted.

The Board notes that there is no indication in the record of lumbosacral radiculopathy, and there are no radiculopathy symptoms specifically due to the lumbar spine. In fact, the VA examinations of record note consistently negative straight leg raising tests (a positive straight leg raising test suggests radiculopathy) and no radiculopathy or other neurologic abnormalities have been diagnosed at any point during the appellate period. Given the above, the Board finds that the weight of the evidence is against finding that there is a neurological abnormality present for the assignment of a separate compensable rating.

ORDER

Entitlement to an initial rating in excess of 10 percent prior to July 22, 2015, for lumbosacral spine strain with spondylolisthesis and degenerative joint disease is denied.

Entitlement to a rating in excess of 20 percent from July 22, 2015, for lumbosacral spine strain with spondylolisthesis and degenerative joint disease is denied.

REMAND

The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that a remand is again warranted under Stegall.

The determination of whether a claimant is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the RO or Board determines that (1) the schedular evaluation does not contemplate the claimant’s level of disability and symptomatology, and (2) the disability picture exhibits other related factors such as marked interference with employment or frequent periods of hospitalization, then (3) the case must be referred to an authorized official to determine whether, to accord justice, an extraschedular rating is warranted. Id.; see also 38 C.F.R. § 3.321 (b)(1).

Additionally, under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), 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.

When the Board finds that an extraschedular rating may be warranted, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the AOJ for referral to the Director, Compensation Service. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

A review of the record shows that in December 2008, an examiner noted that the Veteran’s hypertension symptoms included light-headedness, tiredness, and weakness. In July 2009, the Veteran reported diverticular episodes two days per week, alternating with constipation. In January 2010, the Veteran reported diverticulosis attacks occurred at least four times per week, sometimes causing him to lose control and soil his clothing. He also reported his heart conditions caused dizziness and near fainting episodes. These symptoms suggest that the available schedular criteria for rating the Veteran’s hypertension, hypertensive heart disease, and chronic diverticulosis may be inadequate. 38 C.F.R. § 4.104, DC 7007, 7327, 7101.

In the May 2015 JMPR, the parties agreed that the Board failed in its September 2014 decision to consider the combined effects of the Veteran’s multiple service-connected disabilities when it determined that referral for consideration of an extraschedular evaluation was not warranted. In the February 2017 Memorandum Decision, the Court found that the Board’s reasons and bases supporting its August 2015 determination that referral for extraschedular consideration was not warranted were inadequate.

In August 2017, the Board found that there is evidence suggestive that the Veteran’s disability picture exhibits marked interference with employment, and that in addition, the Veteran reported he is diminished in performing his job duties as a correctional officer and has had to miss work as a result of his service-connected conditions. As a result, the Board remanded this claim for further development, to include an extraschedular evaluation with referral to the Director of Compensation Service. The Board also directed that prior to referral of the claim to the Director for extraschedular consideration, VA assist the Veteran in requesting documentation to support his claim that he is diminished in performing his job duties and has had to miss work as a result of his service-connected conditions.

As the claims file indicates that neither a report from the Director of Compensation Service nor any indication of employment information or any attempts by the RO to assist the Veteran in obtaining said information are shown, the Board finds that there was not substantial compliance with the Board’s August 2017 remand directives. Stegall, 11 Vet. App at 271.

Accordingly, the case is REMANDED for the following action:

1. Contact the Veteran and ask that he identify any employer(s) during the appeal period, and provide any releases necessary for VA to secure employment records.

The RO should request employment records from all employers identified by the Veteran. The scope of these requests should be limited to documentation of workplace limitations and leave taken as a result of his service-connected impairments.

2. Once the above records are retrieved to the extent possible, refer the claim to the Director, Compensation Service, for a determination of whether the assignment of an extraschedular rating is warranted under 38 C.F.R. § 3.321 (b)(1) for the Veteran’s service-connected hypertension, hypertensive heart disease, and chronic diverticulosis, or for the combined effects of the Veteran’s multiple service-connected disabilities.

3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his attorney should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his attorney should be afforded the applicable time period in which to respond.

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

This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012).

______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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