Citation Nr: 18150033 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 09-04 055 DATE: November 14, 2018 ORDER Entitlement to an extraschedular evaluation for palmoplantar keratoderma is denied. FINDINGS OF FACT 1. The established schedular criteria to evaluate the Veteran’s palmoplantar keratoderma do not contemplate his symptoms of pain in grasping and ambulation. 2. The Veteran’s palmoplantar keratoderma does not result in marked interference with employment or frequent periods of hospitalization; nor does it present a disability picture similar in nature or severity to marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for consideration of an extraschedular disability rating for palmoplantar keratoderma have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 7822, 7824 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1970 to January 1974. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs Appeals Management Center (AMC) in Washington, DC, and a July 2008 rating decision of the Department of Veterans Affairs Regional Office (RO) in North Little Rock, Arkansas. In February 2009, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of these proceedings has been associated with the Veteran’s claims file. In December 2014, the Board denied a compensable initial evaluation for palmoplantar keratoderma and granted a 10 percent evaluation for palmoplantar keratoderma, effective February 11, 2014. The Board determined that referral for an extraschedular evaluation was not warranted. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims(Court), which resulted in an April 2016 Joint Motion for Remand specific to the Board’s determination that extraschedular referral was not warranted. As a result, the Board will only address the possibility of an extraschedular evaluation for the Veteran’s palmoplantar keratoderma and not the 10 percent evaluation granted by the Board’s December 2014 decision. In September 2016, the Board remanded the issues of entitlement to an extraschedular evaluation for palmoplantar keratoderma and entitlement to service connection for hearing loss in the left ear for additional development. In May 2017, the Board denied the Veteran’s claims for entitlement to an extraschedular evaluation for palmoplantar keratoderma and entitlement to service connection for hearing loss in the left ear. The Veteran appealed the May 2017 Board decision to the Court. In a May 2018 Amended Joint Motion for Partial Remand, the Court issued an Order that vacated and remanded the claim of entitlement to an extraschedular evaluation for palmoplantar keratoderma to the Board for further development. 1. Extraschedular Evaluation As noted above, as the April 2016 Joint Motion for Remand was specific to a previous Board determination that extraschedular referral was not warranted, the Board will only address the possibility of an extraschedular evaluation for the Veteran’s palmoplantar keratoderma and not the noncompensable evaluation for the period prior to February 11, 2014 under Diagnostic Code 7824 and the 10 percent evaluation, effective February 11, 2014 under Diagnostic Code 7822. In a VA treatment record dated in January 2002, it was noted that the Veteran had a history of hyperkeratotic pits and bumps on the soles of his feet and the palms of his hands. The Veteran indicated that these pits were painful and bothersome. On VA examination in November 2006, the Veteran was evaluated for lesions on his palms and soles. The Veteran indicated that the lesions were quite painful. In a VA treatment record dated in March 2007, the Veteran reported for a follow-up visit for his skin condition. It was noted that he had a history of a skin condition on his bilateral hands and left foot. He reported that “sometimes the one on his foot hurts so bad he cannot walk”. At his February 2009 Travel Board hearing, the Veteran testified that the nodules on his hands made it difficult to grab items because of the pain. On VA examination in April 2012, the examiner noted a diagnosis of keratosis punctata. The examiner indicated that the Veteran’s skin condition impacted his ability to work. He explained that due to involvement of the feet, it would be difficult for the Veteran to spend extensive periods of time on his feet without discomfort. On a VA treatment record dated in November 2013, the Veteran reported bumps on the hands and feet that caused him pain. He related that when the bumps were big on the bottom of his feet, it hurt to walk. On VA examination in April 2014, the examiner noted a diagnosis of punctate palmarplantar keratoderma. The examiner noted that the Veteran had not had any debilitating or non-debilitating episodes in the past 12 months due to his skin condition and that the Veteran’s skin condition did not impact his ability to work. As noted above, in a December 2014 decision, the Board denied a compensable initial evaluation for palmoplantar keratoderma and granted a 10 percent evaluation for palmoplantar keratoderma, effective February 11, 2014. The April 2016 Joint Motion for Remand vacated the Board’s December 2014 decision to the extent that it denied referral for extraschedular evaluation for palmoplantar keratoderma. Specifically, the Joint Motion for Remand noted the Diagnostic Codes (7822 and 7824) under which the Veteran’s service-connected palmoplantar keratoderma was rated, do not properly address the Veteran’s contention that his skin condition affects his ability to grasp with his hands as he testified in February 2009 that he had difficulty grasping due to pain associated with his skin nodules. Additionally, an April 2012 VA examiner opined that the Veteran’s palmoplantar keratoderma affects his ability to work due to the involvement of his feet, which makes standing for long periods of time difficult. The Board in its December 2014 decision also acknowledged that since at least 2002, the Veteran’s skin disability had manifested with quite painful nodules which at times impacted his ability to both ambulate and use his hands. The April 2016 Joint Motion for Remand determined that the criteria upon which Diagnostic Codes 7822 and 7824 are evaluated did not adequately address the painful hand grasping and difficulty standing that the Veteran experienced. As noted above, in September 2016, the Board remanded the Veteran’s claim for extraschedular consideration by the Director of Compensation and Pension Service in accordance with 38 C.F.R. § 3.321(b). In February 2017, the Director of Compensation and Pension Service issued an Advisory Opinion on the matter, ultimately finding that the evidentiary record failed to show an exceptional disability pattern for the service-connected palmoplantar keratoderma that rendered application of the regular rating criteria as impractical as the evidence of record showed only a mild condition. See Thun v. Peake, 22 Vet. App. 111 (2008). The Director noted that the April 2012 VA examiner’s statement regarding the Veteran’s palmoplantar keratoderma affecting his ability to work was a hypothetical statement since the Veteran retired in 2000 because of a stroke. As a result, there was no evidence of a marked interference with employment and the April 2012 examiner’s opinion was not based on the evidence of record and was therefore reduced to a bare conclusion that was not probative without factual predicate in the record. The Director also noted that the rating schedule remained intact and free of an unusual or exceptional disability pattern. Accordingly, entitlement to an extra-schedular evaluation for the service-connected palmoplantar keratoderma under § 3.321(b) (1) was denied. As the Director has considered the matter in the first instance, the Board now has jurisdiction to consider the merits of the claim. The Board is not bound by the determination of the Director. Anderson v. Shinseki, 22 Vet. App. 423 (2009). Extraschedular consideration involves a three step analysis. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, 572 F.3d 1366 (Fed. Cir. 2009). The first element requires a finding that the evidence “presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate.” Id. In order to determine whether a disability is “exceptional or unusual,” there “must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.” Id. In this case, as noted above, the April 2016 Joint Motion for Remand noted that the Diagnostic Codes (7822 and 7824) under which the Veteran’s service-connected palmoplantar keratoderma was rated do not adequately address the difficulty grasping and standing. As such, the first Thun element is met. As to the second element, the Board must determine whether the Veteran’s disability picture exhibits other related factors such as those provided by the regulation as “governing norms,” specifically marked interference with employment or frequent periods of hospitalization. Id.; see also 38 C.F.R. § 3.321 (b)(1). The Board interprets this phrase to mean that although the unusual disability picture presented is not necessarily limited to that of “marked interference with employment or frequent periods of hospitalization,” it must at least as likely as not present a disability picture similar in nature or severity to at least one of those two enumerated factors. The Board finds that the evidence does not show that such requisite related factors, including those enumerated in Thun, are present. Specifically, at no time during the period on appeal does the evidence show that the Veteran has been hospitalized for his palmoplantar keratoderma. As noted in the April 2016 Joint Motion for Remand, an April 2012 VA examiner has determined that the Veteran’s palmoplantar keratoderma affects his ability to work. However, the Board also notes that the April 2014 VA examiner specifically indicated that the Veteran’s skin condition did not impact his ability to work. Accordingly, the Board finds that such related factors did not present a disability picture similar in nature or severity to marked interference with employment or frequent periods of hospitalization. In that regard, the Board notes that while the Veteran reported pain, difficulty standing and difficulty grasping things as a result of his skin condition, significantly, the April 2014 VA examiner indicated that the Veteran had not had any debilitating or non-debilitating episodes in the past 12 months due to his skin condition. The record demonstrated that while the Veteran seemingly experienced discomfort and inconvenience as a result of his skin condition, discomfort and inconvenience do not rise to a level of severity similar in degree to marked interference with employment and frequent hospitalizations. Discomfort caused by a disability is not exceptional or unusual, whereas marked interference with employment or frequent hospitalizations is and suggests a higher degree of functional impairment. Thus, the Board finds that the second Thun element is not met. As related factors similar in nature or degree to frequent hospitalizations or marked interference with employment have not been shown, the Board finds no basis to disturb the February 2017 determination of the Acting Director of the Compensation Service. Accordingly, the Board finds that 38 C.F.R. § 3.321 is inapplicable and thus an extraschedular is not warranted. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel