Citation Nr: 18147210 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 06-33 367 DATE: November 5, 2018 ORDER Entitlement to an extraschedular evaluation for osteomyelitis of the left ring finger is denied. FINDING OF FACT The weight of the competent and probative evidence is against finding such an exceptional disability picture as to render the schedular criteria inadequate for a disability of the left ring finger. CONCLUSION OF LAW The criteria for entitlement to an extraschedular evaluation for osteomyelitis of the left ring finger have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.68, 4.71a, Diagnostic Code (DC) 5000. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1984 to March 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 1987 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The rating history for osteomyelitis of the left ring finger, evaluated under Diagnostic Code 5000, is as follows: 20 percent as of March 25, 1986, and prior to January 13, 1987; 100 percent as of January 13, 1987, and prior to March 1, 1987; 20 percent as of March 1, 1987, and prior to June 1, 1987; 100 percent as of June 1, 1987, and prior to August 1, 1987; 20 percent as of August 1, 1987, and prior to July 15, 1992; zero percent as of July 15, 1992, and prior to July 8, 2009; 20 percent as of July 8, 2009; 100 percent as of July 9, 2009, and prior to July 1, 2010; and zero percent as of July 1, 2010. The Veteran is also in receipt of a 20 percent rating for arthritis of the left ring finger with limitation of motion as of December 19, 1986, and prior to May 3, 2010, and a 20 percent rating for amputation of the left ring finger with phantom pains as of May 3, 2010, and prior to March 20, 2013. The Veteran was granted service connection for loss of use of the left hand and assigned as 70 percent rating, as well as special monthly compensation (SMC) for loss of use of the left hand, both effective March 20, 2013. Accordingly, the Veteran was in receipt of a rating of at least 20 percent for the left ring finger as of March 25, 1986, and prior to March 20, 2013, at which point the left ring finger was compensated as part of the rating for loss of use of the left hand. In an April 2014 decision, the Board remanded the claim of entitlement to an extraschedular evaluation for osteomyelitis of the left ring finger from October 1986 to the present for referral to the Director, Compensation Service (Director). In July 2018, the Director determined that an extraschedular evaluation for osteomyelitis of the left ring finger is not warranted. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an extraschedular evaluation for osteomyelitis of the left ring finger. Osteomyelitis of the left ring finger is evaluated under Diagnostic Code 5000, which provides for a 100 percent rating for osteomyelitis of the pelvis, vertebrae, or extending into major joints, or with multiple localization or with long history of intractability and debility, anemia, amyloid liver changes, or other continuous constitutional symptoms. A 60 percent rating is assigned for frequent episodes of osteomyelitis with constitutional symptoms. Osteomyelitis with definite involucrum or sequestrum, with or without discharging sinus, warrants a 30 percent rating. A 20 percent evaluation is warranted for osteomyelitis with discharging sinus or other evidence of active infection within the past five years. Inactive osteomyelitis, following repeated episodes, without evidence of active infection in past five years, will be assigned a 10 percent rating. 38 C.F.R. § 4.71a, DC 5000. Note (1) to Diagnostic Code 5000 provides that a rating of 10 percent, as an exception to the amputation rule, is to be assigned in any case of active osteomyelitis where the amputation rating for the affected part is no percent. This 10 percent rating and the other partial ratings of 30 percent or less are to be combined with ratings for ankylosis, limited motion, nonunion or malunion, shortening, etc., subject, of course, to the amputation rule. The 60 percent rating, as it is based on constitutional symptoms, is not subject to the amputation rule. A rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. 38 C.F.R. § 4.71a, DC 5000, Note (1). Stated another way, the amputation rule does not apply where constitutional symptoms are present, but does apply to a rating of 30 percent or less, including when such rating is combined with a rating for limitation of motion. The “amputation rule” provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. 38 C.F.R. § 4.68. A 20 percent rating is the maximum rating provided for an amputation of the ring finger. 38 C.F.R. § 4.71, DC 5155. Because the disability at issue affects the ring finger, the amputation rule precludes a schedular evaluation in excess of 20 percent. As previously noted, the Veteran has been in receipt of at least a 20 percent rating for disabilities of the left ring finger for the entire period on appeal. In April 2014, the Board determined that the Veteran claimed entitlement to an extraschedular evaluation based on the Veteran’s report that his left ring finger prevented him from obtaining employment in his field, as well as evidence of in-patient treatment for the finger. Specifically, the Veteran contends that swelling, pain, and loss of grip strength prevented him from obtaining employment in law enforcement and armed security due to issues with firearm qualification. The Board notes that the Veteran is in receipt of a 100 percent rating based on total disability based on individual unemployability (TDIU) as of July 8, 2009. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Director, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is 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. 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating 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 marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Director to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence and contentions in the instant appeal do not establish such an exceptional disability picture as to render the schedular criteria inadequate. As discussed above, the amputation rule precludes a schedular evaluation in excess of 20 percent for the ring finger, and the Veteran has been in receipt of at least a 20 percent rating for disabilities of the left ring finger for the entire period on appeal. Accordingly, a rating in excess of 20 percent on an extraschedular basis would be warranted only if the evidence demonstrates symptoms that are not contemplated by a 20 percent rating for amputation of the left ring finger under Diagnostic Code 5155. See Smallwood v. Brown, 10 Vet. App. 93, 97-98 (1997). The Board finds that the left ring finger symptoms of pain, swelling, and loss of grip strength are contemplated by a rating for amputation and the evidence does not present such unusual or exceptional circumstances which would render the schedular criteria inadequate. Accordingly, the Board finds that the weight of the competent and probative evidence is against finding such an exceptional disability picture as to render the schedular criteria inadequate prior to May 3, 2010, the date of amputation. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Note (1) to Diagnostic Code 5000 provides that a rating for osteomyelitis will not be applied following cure by removal or radical resection of the affected bone. 38 C.F.R. § 4.71a, DC 5000, Note (1). Consistent with Note (1), a noncompensable rating was assigned for osteomyelitis of the left ring finger as of July 1, 2010, the date following the temporary total evaluation based on the need for convalescence due to the amputation. It follows that an extraschedular evaluation is not warranted where osteomyelitis is cured by removal of the affected bone, as there are not symptoms of osteomyelitis subsequent to the amputation. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel