08-38 181
08-38 181
| Board of Vet. App. | Oct 31, 2017Background
- Veteran: Army service July 1982–January 2003; appealed VA RO October 2007 rating decisions relating to low back disability and entitlement to TDIU.
- Procedural history: Case remanded in Aug 2012 and Dec 2014; RO later granted TDIU effective January 22, 2008, but claimant filed for TDIU in Oct 2006 so earlier period remained on appeal.
- Medical record: Veteran reports lumbar pain, flare-ups, and muscle spasms causing limited range of motion and reduced ability to stand/walk/sit; uses medication which reduces some symptoms.
- Board findings: Schedular criteria (General Rating Formula for Spine Disabilities) adequately describe the veteran’s lumbar symptomatology; no exceptional or unusual disability picture shown (no frequent hospitalizations or marked employment interference attributable to back beyond schedular consideration).
- Disposition: Board denied referral for an extraschedular rating for the low back claim; remanded the question of extraschedular TDIU prior to January 22, 2008 to the Director of Compensation Service for consideration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the veteran’s service-connected low back disability should be referred for extraschedular rating | Low back symptoms (pain, spasms, limited ROM, functional loss) are more severe than schedular criteria account for and warrant extraschedular consideration | Schedular criteria already contemplate limitation of motion, muscle spasm, tenderness, and functional loss; medication reduces severity; no exceptional picture or marked employment interference | Denied referral for extraschedular rating for the low back; schedular criteria found adequate |
| Whether the veteran is entitled to TDIU (total rating) for the period before Jan 22, 2008 | Veteran sought TDIU dating to filing in Oct 2006; evidence (SSA determination, physician statement, 2007 VA exam) suggests unemployability before Jan 22, 2008 | RO awarded TDIU effective Jan 22, 2008; Board cannot assign extraschedular TDIU in first instance and must refer cases that don’t meet 4.16(a) thresholds to Director | REMANDED: refer to Director of Compensation Service for extraschedular TDIU consideration for period prior to Jan 22, 2008; readjudicate and issue SSOC if denied |
Key Cases Cited
- Thun v. Peake, 22 Vet. App. 111 (2008) (three‑prong test for extraschedular rating referral)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (benefit of the doubt rule in veterans claims)
- Fanning v. Brown, 4 Vet. App. 225 (1993) (refer cases to Director when claimant fails to meet schedular TDIU thresholds but evidence suggests unemployability)
- Bowling v. Principi, 15 Vet. App. 1 (2001) (Board lacks authority to assign extraschedular TDIU in first instance)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (veteran’s right to submit additional evidence after remand)