Citation Nr: 1750187 Decision Date: 11/06/17 Archive Date: 11/17/17 DOCKET NO. 08-13 101A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for residuals of right thumb distal phalanx fracture ("right thumb disability"). 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of right great toe fracture ("right big toe disability"). 3. Entitlement to an initial compensable disability rating for rosacea. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1985 to May 1989 and from February 1990 to February 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for all three issues on appeal, assigning a 0 percent rating to all three issues. In January 2012, the Veteran testified before a now-retired Veterans Law Judge; a transcript of the hearing is associated with the claims file. The Veteran has been notified of this fact and in response to VA's notification, she affirmed in April 2014 that she did she did not want another hearing. 38 C.F.R. § 20.707. In April 2012, the Board remanded the issue of initial compensable rating for rosacea and denied initial compensable ratings for right thumb disability and right big toe disability. In August 2013, after the Veteran appealed the issues denied, the United States Court of Appeals for Veterans Claims (Court) granted a joint motion for partial remand (JMPR), vacating the Board's denial as to the right thumb and right big toe disabilities. The basis for the JMPR was the Board's failure to address the issue of the Veteran's complaints of pain and whether that would warrant a compensable rating as painful motion under 38 C.F.R. § 4.59. In April 2014, the Board addressed the Veteran's complaints of pain and granted 10 percent disability ratings for the Veteran's right thumb and right big toe disabilities, and remanded all of the issues on appeal to have the RO re-adjudicate the claims with the consideration of newly submitted evidence. In December 2014, the Board denied an initial compensable rating for rosacea. In June 2016, after the Veteran appealed the issue denied, the Court vacated the Board's denial, stating that the Board failed to discuss and evaluate relevant lay statements when considering whether referral for extraschedular consideration was warranted. In June 2016, the Board remanded the issues of initial compensable ratings for right thumb disability and right big toe disability for a new VA examination, as the Veteran reported worsening of symptoms. The Board notes that the Veteran in an August 2015 Appellant Brief and the Court in the June 2016 court order mentioned that the record raised the issue of anxiety with respect to the Veteran's rosacea. Upon review of the record, there is no evidence that references anxiety. Nonetheless the Board is referring the issue of psychiatric disorder, as emotional distress was raised by the record. The issue of a psychiatric disorder, to include emotional distress, has been raised by the record in a statement submitted June 2006, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The appeal is REMANDED to the AOJ. VA will notify the Veteran if further action is required. REMAND Although the Board regrets the additional delay, another remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's remaining claims so that she is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Right Thumb and Right Big Toe As stated above, the Board remanded in June 2016 in order to obtain a new VA examination to assess the current severity of the Veteran's disabilities. In response to the remand, the Veteran was afforded VA examinations in July 2016. Subsequent to the June 2016 Board remand, the Court, in Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. Despite, the most recent VA examinations occurring after Correia, the Board remand came prior to Correia, and therefore there were no court directives in place for the VA examiners to follow. After reviewing the VA thumb and toe examinations of record, the Board finds that they are incomplete and require further medical guidance, in light of the recent holding in Correia. As the previous VA examination reports do not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, new examinations are necessary to decide the claims. Rosacea The Veteran is seeking an initial compensable rating for her service-connected rosacea. Specifically she wants a disability rating of 100 percent. See Notice of Disagreement submitted October 2016. As stated above, the Court in June 2016 directed the Board to consider two specific lay statements when assessing whether extraschedular is warranted. A lay statement from the Veteran's sister was submitted in June 2006. The Veteran's sister stated that the Veteran suffers from emotional distress as a result of dealing with her rosacea on a daily basis, and that the rosacea has negatively impacted her self-esteem. A statement from the Veteran's roommate and fellow service member was submitted in June 2006. She described how she witnessed the great care the Veteran would take every morning and evening to treat her rosacea and sunspots, and how the Veteran feared her skin condition might be cancerous. She stated that having rosacea has been very stressful for the Veteran, in that she is someone who takes pride in taking care of herself. In addition to those two statements, a statement by the Veteran's other sister was submitted in June 2006. She reported that even after the Veteran had cryosurgery to remove facial lesions, the Veteran was still required to treat her rosacea with topical medication. She also stated that the rosacea, in conjunction with other service-connected disabilities have greatly impacted the Veteran's daily life. The Veteran is currently rated by analogy under 38 C.F.R. 4.118, Diagnostic Code (DC) 7806. In the August 2015 Appellant Brief, the Veteran argues that the rating criteria "do not specifically contemplate the Veteran's symptomatology." Specifically the Veteran contends that the following symptoms are not contemplated by DC 7806: the need for constant treatment (both topical and oral) even after cryosurgery, the painful flare ups (pimples that occur monthly and last a week), the need to use sunblock, the constant itching, shedding and crusting of her skin and the emotional impact this condition has had on her. The June 2016 court order specially requires that the Board contemplate the lay statements describing the Veteran's emotional distress and anxiety due to her rosacea when considering whether extraschedular is warranted. As a result of the above noted determination and evidence, the Board finds that remand is required in order to further develop the case and thereafter to refer the case for extraschedular consideration by the Director of Compensation Service. According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321 (b)(1) (2017). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of Compensation Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, in this case, DC 7806 under which the Veteran's service-connected rosacea disability was rated does not specifically contemplate the constant treatment and care that is required to treat her service-connected rosacea or the emotional impact this has on the Veteran. As such, the first Thun element is met. With respect to the second prong of Thun in this case, the Veteran contends that the rating schedule does not adequately assess the impact that her service-connected rosacea has on her activities of daily living. In particular, the Veteran has provided lay statements claiming that her rosacea has greatly impacted her daily life and caused her emotional distress. As such, the second Thun element is met. Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of Compensation Service. As the first two elements were met, remand is therefore required for the Veteran's increased rosacea disability rating claim to be referred to the Under Secretary for Benefits or the Director of Compensation Service for extraschedular consideration. Therefore, the Board finds that the established schedular criteria may be inadequate to describe the severity and symptoms of the Veteran's service-connected rosacea. As such, the Board finds that referral consideration of an extraschedular rating is warranted. While on remand, the Veteran's assistance should be obtained to ensure that copies of any outstanding records of pertinent medical treatment are identified and added to the claims file. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file any outstanding VA treatment records documenting treatment for right thumb disability, right big toe disability, or rosacea. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her right thumb disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right thumb AND opposite paired joint. See Correia v. McDonald, 28 Vet. App. 158 (2017). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner should provide information concerning the functional impact of the Veteran's service-connected right thumb disability. 3. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her right big toe disability. The Veteran's electronic claims file should be made available to and reviewed by the examiner. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right big toe AND opposite paired joint. See Correia v. McDonald, 28 Vet. App. 158 (2017). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In addition, the examiner should provide information concerning the functional impact of the Veteran's service-connected right big toe disability. The examiner should provide a complete rationale for any opinions provided. 4. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of her service-connected rosacea. If possible, schedule the examination during a period when her skin condition flares-up. The examiner must review the Veteran's electronic records, including this Remand. If possible, the appropriate Disability Benefits Questionnaire (DBQ) should be used. 5. After completion of the above, refer the Veteran's claim for entitlement to an increased rating for service-connected rosacea to the Under Secretary for Benefits or the Director of Compensation Service pursuant to the provisions of 38 C.F.R. § 3.321(b) (2017) for consideration of whether an extraschedular rating is warranted. All documentation resulting from this request must be added to the claims file. 6. After completing the requested actions and any additional development warranted, the AOJ should review the expanded record and determine if the appeal can be granted- to include consideration of whether an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1) for the increased rating claim for rosacea is appropriate. If the claims remain denied, the Veteran and her representative should be furnished an appropriate supplemental statement of the case. After an opportunity to respond, the case should be returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or 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.A. §§ 5109B, 7112 (West 2014). _________________________________________________ H.M. WALKER Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).