Citation Nr: 21065305 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 19-01 626 DATE: October 25, 2021 REMANDED Entitlement to an increased evaluation in excess of 10 percent from September 29, 2015 for metatarsalgia of the left foot, claimed as degenerative changes of the first left foot metarsophalangeal joint with bone spurs, associated with the amputation of the left second toe, under both schedular and extraschedular criteria, is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1988 to August 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2020. A transcript of the hearing is associated with the Veteran's claims file. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, the Veteran testified before the undersigned VLJ that he continues to work, a statement verified by recent VA medical examiners. While the Veteran has previously been awarded SMC for a temporary period, there is no further lay or medical evidence the Veteran is currently housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that TDIU or further consideration of SMC is not inferred by the record, and as such will not be further discussed. Entitlement to an increased evaluation in excess of 10 percent from September 29, 2015 for metatarsalgia of the left foot, claimed as degenerative changes of the first left foot metarsophalangeal joint with bone spurs, associated with the amputation of the left second toe, under both schedular and extraschedular criteria, is remanded. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran filed a claim in July 2017 that his left foot metatarsalgia, service connected with a 10 percent evaluation under Diagnostic Code 5279 effective from September 29, 2015, had worsened and that he was seeking an increased rating. The Veteran last received a valid VA examination for his feet and related scars in March 2019, but the Veteran's July 2020 testimony before the undersigned VLJ indicates the Veteran's level of disability due to his left foot metatarsalgia may exceed the current VA schedule used in evaluating such disabilities. Diagnostic Codes for disabilities of the feet are noted in 38 C.F.R. § 4.71a, and include Diagnostic Code 5276 through Diagnostic Code 5284. As noted above, the Veteran is currently rated under Diagnostic Code 5279 for left foot metatarsalgia. Diagnostic Code 5284 provides ratings for residuals of other foot injuries. Severe residuals of foot injuries are rated 30 percent disabling. A Note to Diagnostic Code 5284 provides that foot injuries with actual loss of use of the foot are to be rated 40 percent disabling. 38 C.F.R. § 4.71a. The Veteran's left foot metatarsalgia evaluation is complicated by related disabilities on the same foot. In addition to the metatarsalgia of the left foot, the Veteran is rated for amputation of the left second toe, with an evaluation of 20 percent effective September 29, 2015, under Diagnostic Code 5172; hallux valgus, left foot, with a noncompensable evaluation under Diagnostic Code 5280; and hammer toe, third toe left foot, with a noncompensable evaluation under Diagnostic Code 5282. All of the previous are effective since September 29, 2015. The Veteran is also rated for painful scars, status post arthrodesis left first metatarsophalangeal joint, arthroplasty hammer toe, with a 20 percent evaluation under Diagnostic Code 7804; and scars on the first and third toes, with a noncompensable evaluation under Diagnostic Code 7802. The two scar disabilities are effective from December 12, 2018. 38 C.F.R. § 4.71a, The Foot. The Board points out, however, that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, diagnosis, and demonstrated symptomatology. Any change in diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In addition, the Board is cognizant of the limit set forth by the amputation rule, which states that the combined rating for a disability shall not exceed the rating for amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68. Here, the Veteran is already receiving the highest evaluation possible for his left foot metatarsalgia, which is currently rated as 10 percent disabling under Diagnostic Code 5279, effective since September 29, 2015. Id. The Board finds that two courses of action are necessary to address the Veteran's disability in this remand. First, whether there is a basis under any other rating criteria pertinent to the foot for the service-connected disability in question, and second, whether the criteria for an extraschedular rating for service-connected left foot metatarsalgia is appropriate. Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007). Extraschedular Consideration While the Ratings Schedule is designed to be robust and adaptive, there will be occasions where the ratings provisions do not adequately describe and compensate a particular disability. Extraschedular evaluations are assigned in cases where an exceptional or unusual disability picture is presented with such related factors as marked interference with employment or frequent periods of hospitalization that renders application of regular rating schedular standards impractical. 38 C.F.R. § 3.321(b)(1); see Fanning v. Brown, 4 Vet. App. 225, 229 (1993). The Board generally must consider referral for extraschedular consideration only "[w]here there is evidence in the record that shows exceptional or unusual circumstances or where the veteran has asserted that a schedular rating is inadequate." Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (quoting Yancy v. McDonald, 27 Vet. App. 484, 493 (2016) (internal quotations omitted)). The Board notes the amputation rule of 38 C.F.R. § 4.68, which potentially limits the overall disability rating in the Veteran's appeal, but also that extraschedular consideration is appropriate based on the Veteran's July 2020 testimony before the undersigned Veterans Law Judge and the medical evidence to date. Moyer v. Derwinski, 2 Vet. App. 289, 290 (1992). The United States Court of Appeals for Veterans Claims (CAVC or Court) has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); see 38 C.F.R. § 3.321(b)(1). Here, the Board finds here, at a preliminary stage, that the evidence of the Veteran's left foot disability presents an exceptional disability picture. The Veteran testified at his Board hearing before the undersigned Veterans Law Judge in July 2020 that his left foot disability was having a profound effect on his activities of daily life. The Board finds the Veteran's July 2020 testimony highly probative in that his left foot metatarsalgia disability indicates marked interference with the ability to stand, walk, run, and maneuver on his feet, along with daily chronic pain. Thus, referral for extraschedular consideration on this basis is warranted. To accord justice in the exceptional case where the criteria in VA's Rating Schedule are inadequate to rate a single service-connected disability, the Director of Compensation Service or his or her delegate is authorized to approve an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the disability. The governing norm in these exceptional cases is a finding by the Director of Compensation Service or delegate that application of the regular schedular standards is impractical because the disability is so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization. 38 C.F.R. § 3.321(b)(1). The Board must refer the Veteran's claims to the Under Secretary for Benefits or Director of Compensation Service for this special consideration when the issue is raised either by the Veteran or by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to adjudicate the merits of the extraschedular aspect of the claims. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration); Kuppamala v. McDonald, 27 Vet. App. 447 (2015). As such, the Board remands for a new VA examination to examine the nature and severity of the Veteran's left foot metatarsalgia, and then for a referral to the Director of Compensation Service for an opinion regarding extraschedular consideration of the Veteran's claim for increased ratings for his left foot disability. The matters are REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated VA medical records of the Veteran not previously obtained. Contact the Veteran and request that he identify any pertinent private treatment records not already identified and obtained and, with the appropriate authorization, attempt to obtain those records and associate them with the claims file. 2. Schedule the Veteran for an examination with a VA examiner highly qualified in foot disabilities, if possible, to determine the nature and severity of his service-connected left foot metatarsalgia disability. It is imperative that the claims file be made available to the examiner for review in connection with the examination. The examiner should note that the claims file has been reviewed. All indicated tests and studies should be performed and all clinical and special test findings should be reported in detail to allow for evaluation under applicable VA rating criteria. 3. After the above VA examination for the left foot is complete, refer the issue of entitlement to an extraschedular increased rating for the Veteran's left foot metatarsalgia to the Director, Compensation Service, for adjudication in accordance with 38 C.F.R. § 3.321(b). 4. Thereafter, readjudicate the issue on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.