10-19 143
10-19 143
| Board of Vet. App. | Jul 31, 2017Background
- Veteran served active duty 1986–1988 and filed an increased-rating claim for a service‑connected lumbar spine disability (effective date of claim: April 17, 2008).
- RO initially denied an increase (Feb 2009), later granted 20% from Dec 18, 2013 and 40% from Dec 10, 2016, producing a staged-rating dispute for earlier periods.
- Record includes VA examinations in April 2010, Dec 2013, and Dec 2016; Board remanded in 2016 for records and a new exam, which was completed Dec 2016.
- Board found from Apr 17, 2008–Dec 18, 2013 the back condition manifested with pain, muscle spasm, and abnormal gait; concluded 20% rating warranted for that period.
- Board denied ratings in excess of 20% for Apr 17, 2008–Dec 10, 2016 and denied ratings above 40% from Dec 10, 2016, finding no ankylosis or sufficiently long incapacitating IVDS episodes.
- Claim for TDIU was raised by the record and REMANDED to the AOJ for VCAA notice, Form 21-8940, any further development, and initial adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate rating for lumbar spine for Apr 17, 2008–Dec 18, 2013 | Back worsened; symptoms exceed 10% rating (pain, spasms, gait abnormalities) | RO relied on exams showing limited ROM and variable effort; 10% insufficient | Granted 20% for Apr 17, 2008–Dec 18, 2013 (Diagnostic Code/finding: muscle spasm with abnormal gait) |
| Whether rating >20% is warranted for Apr 17, 2008–Dec 10, 2016 (including staged periods) | Veteran asserted more severe limitation and flare‑ups; contested exam methods | VA relied on Dec 2013 and Dec 2016 exams showing ROM and IVDS findings insufficient for higher schedular ratings | Denied rating in excess of 20% through Dec 10, 2016 and denied >40% from Dec 10, 2016; Dec 2016 exam supported 40% but not higher |
| Extraschedular evaluation (38 C.F.R. § 3.321) | Symptoms and functional impact may be exceptional and not captured by schedule | Schedular criteria (painful ROM, spasms, flare‑ups, incapacitating episodes) already contemplate the veteran’s limitations; no exceptional/combined impact shown | No referral for extraschedular rating; schedular ratings deemed adequate |
| Entitlement to TDIU | Evidence (stopped work Oct 2015; functional limitations) reasonably raised TDIU claim | AOJ has not provided specific VCAA notice or adjudicated TDIU initially | REMANDED to AOJ for VCAA notice, Form 21‑8940, development, and initial TDIU adjudication |
Key Cases Cited
- Stegall v. West, 11 Vet. App. 268 (Board must ensure compliance with remand orders)
- Correia v. McDonald, 28 Vet. App. 158 (VA exams must test painful motion active/passive, weight/nonweightbearing when required)
- DeLuca v. Brown, 8 Vet. App. 202 (functional loss from pain considered in musculoskeletal ratings)
- Thun v. Peake, 22 Vet. App. 111 (three-step extraschedular inquiry)
- Doucette v. Shulkin, 28 Vet. App. 366 (initiating extraschedular consideration requires assertion or evidence of inadequacy)
- Johnson v. McDonald, 762 F.3d 1362 (consideration of extraschedular referral for combined effects)