Spellers: Extraschedular Ratings v Schedular Symptoms for Sciatica and Reasons and Bases Problems

Spellers v. Wilkie, Case Number 16-4053, decided September 7, 2018 considers referral for an extraschedular rating under 38 CFR Section 3.321(b)(1) and determines that it is not required because the scheduler rating covered the symptoms complained of by the veteran.

The veteran was rated for bilateral lower extremity sciatica at mild for each leg.  The veteran did not appeal the sciatica rating of mild, but did appeal the failure to refer for an extraschedular rating due to his use of an assistive device (cane or walker).  “This matter was submitted to a panel of the Court principally to address whether the Board must consider the  Appellant's use of assistive devices, such as a cane or walker, in its extraschedular analysis of his sciatica. As we will further explain, because of the nature of the criteria contained in 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8520 and 38 C.F.R. § 4.120, we hold that the schedular rating criteria contemplate the symptoms necessitating the use of assistive devices, as well as the severity of those symptoms, and thus referral for extraschedular consideration on that basis was not warranted.”  Id. at *1.

An extraschedular rating is called for if “A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”  Id. at *3. The Court explained that referral was governed by a three part inquiry found in Thun v. Peake, 22 Vet. App. 111, 115 (2008).  First,

whether the "evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." This requires the Board to compare a veteran's specific symptoms and their severity with those contemplated by the rating schedule.  If the Board determines that a veteran's symptoms or their severity is not contemplated by the rating schedule, the second element requires the Board to "determine whether the claimant's exceptional disability picture exhibits other related factors," such as marked interference with employment or frequent periods of hospitalization. Finally, if the first two elements are met, the final element mandates that the Board refer the claim to the Under Secretary for Benefits or the Director of Compensation Service for a determination about whether an extraschedular rating is warranted.

Id. at *3-4 (internal citations omitted).

The Court then pivoted to the sciatica rating and noted the relevant Diagnostic Code is 38 CFR Section 4.124a, which contains a note stating “this regulation provides that "disabilit[ies] from the following diseases and their residuals may be rated from 10[%] to 100[%] in proportion to the impairment of motor, sensory, or mental function." …  It further notes that, when rating nerve injuries, "attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances."  Id. at *4.

The veteran had argued DC 8520 does not contemplate use of an assistive device (cane or walker), but the Court essentially found the note contained before DC 8520 does cover use of an assistive device.  It then found:

Given the broad nature of that provision, finding symptoms not contemplated by its

"impairment of motor, sensory or mental function" language presents quite a challenge. All the symptoms for which a cane or walker could serve as a proxy are contemplated by § 4.120 as impairments of motor and sensory function. In other words, the symptoms of sciatica that cause the appellant to use assistive devices such as a cane or walker are contemplated by the scheduler rating criteria and therefore do not satisfy the first part of Thun's first element.

Id. at *7.

The Court then considered whether the rating schedule contemplates the severity of the symptoms and found

if the appellant is correct that "his assigned 10[%] ratings do not contemplate the severity of his bilateral lower extremity sciatica," then the rating schedule itself provides the appropriate remedy – assignment of a rating greater than mild.  This is so regardless of the reasons why his condition may be worse than mild (here purportedly due to use of assistive devices), because there are no criteria in DC 8520 that would need to be satisfied other than a level of severity worse than mild.

Id. at *8.

The Court stated: “In sum, both the symptoms and severity of the appellant's sciatica that require him to use a cane or walker are contemplated by the schedular rating criteria, specifically, in the regulations prefatory to DC 8520, such as § 4.120, and in DC 8520 itself.  Therefore, we hold that the Board did not err in its finding that the first element of Thun was not met on the ground that the appellant's condition necessitates use of assistive devices.”  Id. at *9.

The Court then considered a Board determination about the veteran’s credibility as to side effects of medication.  The veteran had recited side effects of medication warranted a higher rating, but the Board found the statements about the alleged side effects lacked credibility largely because complaints of the side effects are not captured in any of the medical records.  The Court rejected such an argument stating simply because they are not recorded in the records does not show they did not exist.  It explained

those records simply did not mention side effects.  It is not clear, therefore, that the appellant was asked about side effects at those times or that he did not actively deny side effects. "[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Buchanan, 451 F.3d at 1337. Rather, the Board must "first establish a proper foundation for drawing inferences against a claimant from an absence of documentation."

Id. at *10-11.

While having potentially wider reaching impacts, this case really shows that attacking a sciatica rating should be done by attacking the actual rating as opposed to hoping for use of a an extraschedular rating.  While the mild, moderate and severe categories are not well defined, this case should encourage veterans and advocates to argue use of an assistive device prompts a higher rating than mild.  It shows that a veteran and advocate must closely examine the notes associated with a Diagnostic Code and let that lead them in how to attack a low rating.

The decision was by Judge Allen, joined in by Judges Bartley and Meredith.


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