Veteranclaims’s Blog

February 24, 2011

Single Judge Application ExtraSchedular, Three-Step Inquiry, CFR 3.321(b)

Excerpt from Decision below:
“For exceptional cases, VA has authorized the assignment of extraschedular ratings. 38 C.F.R. § 3.321(b)(1) (2010). As the Court explained, a “determination of whether aclaimant is entitled to an extraschedular rating under § 3.321(b) 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.”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3293
JOSEPH MOBLEY, III, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

LANCE, Judge: The pro se appellant, Joseph Mobley, III, appeals an August
10, 2009, Board of Veterans’ Appeals (Board) decision that denied entitlement to a
disability rating in excess of 40% for residuals of a back injury diagnosed as lumbosacral strain. Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet. App. 23, 25-26 (1990).
This appeal is timely, and the Court has jurisdiction over the case
pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will affirm the August 10, 2009, Board decision.

I. ANALYSIS
In his informal brief, the appellant argues that the Board’s finding that “[
t]here was no evidence of record showing [his] lumbar spine disability has markedly
interfered with his employment status beyond that interference contemplated by the assigned scheduler disability ratings” was clearly erroneous. Appellant’s Brief (Br.) at 1. He points out that he was unable to work for 10 weeks in 2009 because of his back condition. R. at 83. He maintains that the Board failed to apply 38 C.F.R. § 4.40 (2010), asserting that a 40% disability rating does not consider the
effect of treating medications and the use of a Transcutaneous Electrical Nerve Stimulator (TENS) unit. Appellant’s Br. at 2. The appellant asks the Court to grant a “Total or 100% rating.” Id.

As noted by the Board, the appellant’s back disability should be evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (38 C.F.R. § 4.71a, Diagnostic Code (DC) 5235-43 (2010)) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (38 C.F.R. § 4.71a, DC 5243), whichever results in a higher rating. R. at 10. Generally, evaluating a disability using either the corresponding or analogous Dcs contained in the rating schedule is sufficient. See Anderson v. Shinseki, 22 Vet.App. 423, 425 (2009); 38 C.F.R. §§ 4.20 and 4.27 (2010). For exceptional cases, VA has authorized the assignment of extraschedular ratings. 38 C.F.R. § 3.321(b)(1) (2010). As the Court explained, a “determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) 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. The Board’s determination of whether referral for extraschedular consideration is appropriate is a finding of fact that the Court reviews under the “clearly erroneous” standard of review. Thun, 22 Vet.App. at 115. Although the rating schedule contemplates limitation of activity due to pain, see DeLuca v. Brown, 8 Vet.App. 202 (1995); 38 C.F.R. §§ 4.40, 4.45 (2007), an extraschedular rating may be warranted if the level of severity of the appellant’s condition is not contemplated by the rating schedule. See Thun, 22 Vet.App. at 115. In DeLuca, the Court held that 38 C.F.R § 4.40 requires that the disabling effect of painful motion be considered when rating joint disabilities. DeLuca , 8 Vet.App. at 205-06. Pursuant to § 4.40, a “[d]isability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.”
Further, under § 4.40, functional loss “may be due to pain, supported by
adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled.” With regard to the joints, 38 C.F.R. § 4.45 provides that “the factors of disability reside in reductions of their normal excursion of movements in different planes.”
When rating disabilities of joints, including the spine, the Board must discuss any additional limitations a claimant experiences as a result of pain, weakness, or fatigue. DeLuca, 8 Vet.App. at 205-06.
The General Rating Formula for Diseases and Injuries of the Spine (38 C.F.
R. § 4.71a, DC 5235-43) provides:
Unfavorable ankylosis of the entire spine
……………………………………………………..100
Unfavorable ankylosis of the entire thoracolumbar spine……..50
Unfavorable ankylosis of the entire cervical spine; or, forward flexion of
the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the
entire thoracolumbarspine…………………………………40
Forward flexion of the cervical spine 15 degrees or less; or, favorable
ankylosis of the entire cervical spine……………………..30
Forward flexion of the thoracolumbar spine greater than 30 degrees but not
greater than 60 degrees; or, forward flexion of the cervical spine greater than 15
degrees but not greater than 30 degrees; or, the combined range of motion of the
thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 kyphosus……………………20
Forward flexion of the thoracolumbar spine greater than 60 degrees but not
greater than 85 degrees; or, forward flexion of the cervical spine greater than 30
degrees but not greater than 40 degrees; or, combined range of motion of the
thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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……………………..10

The Formula for Rating Intervertebral Disc Syndrome Based on
Incapacitating Episodes (38 C.F.R. § 4.71a, DC 5243) provides:
With incapacitating episodes having a total duration of at least 6 weeks
during the past 12 months…………………………………60
With incapacitating episodes having a total duration of at least 4 weeks
but less than 6 weeks during the past 12 months……………………..40
With incapacitating episodes having a total duration of at least 2 weeks
but less than 4 weeks during the past 12 months……………………20

With incapacitating episodes having a total duration of at least one week
but less than 2 weeks during the past 12 months………………….10
Here, the Board reviewed and discussed the evidence of record including
treatment records and examination reports, the general rating formula for disease and injuries of the spine, and the criteria for the various available ratings. R. at 8-12. Specifically, the Board reviewed treatment records detailing when the appellant was seen in the pain clinic, his complaints of back pain, and his statements as to when he missed school and work. R. at 10-11. The Board then evaluated the evidence in relation to the criteria given in each percentage rating. R. at 9-10. The Board concluded that the appellant’s “residuals of a back injury diagnosed as lumbosacral that the appellant’s “residuals of a back injury diagnosed as lumbosacral strain are shown to be contemplated on a schedular basis” and determined that the appellant’s back injury warrants no greater than a 40% rating. R. at 9-12. Having determined that the first step of the Thun inquiry was satisfied, the Board had no duty to consider extraschedular referral for the appellant’s claim further.
In regard to DeLuca, the Board explicitly mentioned DeLuca and §§ 4.40
and 4.45 (R. at 9) and then took note of the appellant’s functional loss and joint disability attributable to pain in its decision. R. at 10-12. As the Secretary notes, the appellant’s current rating accounts for the appellant’s flexion motion decreasing from 80 degrees to 30 degrees as a result of pain on motion
after repetitive use. Secretary’s Br. at 6. Under 38 C.F.R. § 4.71a, DC
5235-43, a 40% rating is appropriate where “forward flexion of the thoracolumbar spine [is] 30 degrees or less.” In regard to the appellant’s period of inability to work, the DC contemplates periods of incapacitating episodes.1
38 C.F.R. § 4.71a, DC 5243. Also, as the Secretary notes, the examiner for
a March 2009 VA examination concluded that the appellant’s back disability caused “[n]o significant effects” on his usual occupation. R. at 41. The Board also stated that the appellant was self employed. R. at 9-10. In its decision, the Board also referenced the side effects that the appellant experienced from medications and his use of a TENS unit before concluding that, based on the record in relation to the
relevant diagnostic code, that the appellant’s condition was contemplated by the DC. R. at 11-12.
While the appellant argues that the Board erred because the DC does not
consider the effects of his medications or of the TENS unit, he points to no evidence that they add to his disability. A review of the record shows that the appellant’s use of Vicodin and Ibuprofen causes occasional anxiety and

1The Court notes that, under 38 C.F.R. § 4.71a, DC 5243 note 1, “an
incapacitating episode is a period of acute signs and symptoms . . . that requires bed rest prescribed by a physician.”

some constipation (R. at 36, 344), but also helps with his pain and the side effects of his back disability (R. at 334, 344). Accordingly, the Court does not find the Board was “clearly erroneous” in holding that an extraschedular rating was not appropriate and the Court concludes that the Board provided adequate reasons and bases for its decision.

II. CONCLUSION
After consideration of the appellant’s and the Secretary’s briefs, and a
review of the record, the Board’s August 10, 2009, decision is AFFIRMED.
DATED: February 22, 2010
Copies to:
Joseph Mobley, III
VA General Counsel (027)

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