Citation Nr: 21069629 Decision Date: 11/19/21 Archive Date: 11/19/21 DOCKET NO. 17-51 055 DATE: November 19, 2021 ORDER Entitlement to an initial rating of 40 percent, but not higher, for diabetic ulcers of the right lower extremity with residual scarring is granted. Entitlement to special monthly compensation (SMC) based on loss of use of the right foot effective September 4, 2020, is granted. FINDINGS OF FACT 1. The Veteran had six diabetic ulcers of the right lower extremity, which resulted in residual scars that were both unstable and painful; the unstable, painful scars represent the predominant disability related to his diabetic ulcers. 2. The service-connected diabetic ulcers of the right lower extremity with residual scarring resulted in the loss of use of the right foot beginning September 4, 2020. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 40 percent, but not higher, for diabetic ulcers of the right lower extremity with residual scarring have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.27, 4.118, Diagnostic Codes 7804, 7826 (in effect before and after August 13, 2018). 2. The criteria for entitlement to SMC based on loss of use of the right foot effective September 4, 2020, have been met. 38 U.S.C. §§ 1114(k), 5107; 38 C.F.R. §§ 3.102, 3.350(a)(2), 4.3, 4.63. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to October 1971. He died in September 2020. The appellant is the Veteran's surviving spouse, who has been properly substituted by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The issue of entitlement to an initial increased rating for diabetic ulcers of the right lower extremity with residual scarring comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 AOJ rating decision. In an April 2019 decision, the Board denied the Veteran's claim for an initial rating in excess of 20 percent for diabetic ulcers of the right leg with residual scarring. In August 2020, the United States Court of Appeals for Veterans Claims (Court) vacated that portion of the April 2019 Board decision and remanded the case to the Board for adjudication consistent with the terms of an August 2020 Joint Motion for Partial Remand (JMPR). The Board then remanded the matter in March 2021. VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. The AOJ associated the Veteran's service records as well as VA and private treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. VA examinations were afforded the Veteran prior to his death. The Board notes the Veteran's assertion in a September 2017 substantive appeal that a July 2015 VA examination had been performed by a former VA physician who had been fired by VA for racist statements. The Veteran further stated that the VA examiners cited in the statement of the case (i.e., in July 2015 and August 2017 VA examinations) "lack adequate knowledge concerning the diagnosis [sic] conditions that I was claiming for increase." Finally, the Veteran indicated in a September 2018 statement (received in October 2018) that the VA examination cited in a supplemental statement of the case (SSOC) presumably an August 2018 VA examination referenced in a September 2018 SSOC was inadequate because it was performed by a nurse practitioner and "should have been performed . . . by a particular doctor that exhibits the medical expertise." First, as regards the July 2015, August 2017, and August 2018 VA examinations, the Board notes that the Veteran objected to the medical degrees held by the examiners without specifying why such examiners would be unable to review his recent treatment and describe the current state of his right lower extremity. The Board finds that a doctor (July 2015), physician's assistant (August 2017), and nurse practitioner (August 2018) all have the necessary training to summarize the Veteran's reported history, the medical treatment records, and the current condition of his right lower extremity. Moreover, their reports are consistent with the contemporaneous private and VA medical center (VAMC) treatment records, which are outlined in the section below. Accordingly, the Board finds that the July 2015, August 2017, and August 2018 VA examiners were competent to convey the evidence that they provided. Second, regarding alleged racist statements of the July 2015 VA examiner, the Veteran did not specify how these alleged statements affected his examination. It is noted that the Veteran offered no support or evidence regarding his bare accusations. Furthermore, as will be summarized in the next section, the July 2015 VA examiner's reports and findings were consistent with the contemporaneous treatment records. Thus, the Board finds this VA examination's objective findings are reliable and credible. Finally, the Board acknowledges the portion of the August 2020 JMPR that highlighted an inconsistency in the August 2018 VA examination. Specifically, the VA examination indicated that the Veteran's diabetic ulcers required multiple wound management systems as well as an oxygen chamber for treatment but also stated that the Veteran did not require any medication or other procedures in the previous 12 months. The Board notes that the reference to "Multiple wound management systems as well as oxygen chamber" was in the "Medical History" section of the VA examination in which the examiner was asked to "[d]escribe the history (including onset and course) of the Veteran's skin conditions." In contrast, the question (answered in the negative) of whether the Veteran had "been treated with medication in the past 12 months for any skin condition?" was in a separate section for "Treatment." Additionally, the August 2017 VA examination as well as VAMC primary care treatment records in March 2018, June 2018, and October 2018 failed to mention a current diagnosis of diabetic ulcers or current treatment for diabetic ulcers with residual scars. The Board accordingly finds that the evidence clearly shows that the Veteran had not received treatment for his service-connected right lower extremity diabetic ulcers with residual scars in the 12 months prior to the August 2018 VA examination. The reference to multiple wound management systems and oxygen therapy simply described the Veteran's medical history. In sum, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Evaluation of diabetic ulcers of the right lower extremity with residual scarring The appellant contends that the Veteran was entitled to a higher rating for his diabetic ulcers of the right lower extremity with residual scarring. The Board agrees and finds that an initial 40 percent rating, but not higher, is warranted. Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code (Code), the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability ratings. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In cases where, as here, the question for consideration is the propriety of the initial disability rating assigned, however, an evaluation of the medical evidence since the grant of service connection and a consideration of the appropriateness of a "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). A staged rating compensates the veteran for variations in the disability's severity since the effective date of his award. VA amended the criteria for rating skin disabilities effective August 13, 2018. Although the criteria remained virtually unchanged for some Codes (such as Code 7804), others such as Code 7826 were significantly modified. In situations where the Code criteria have been amended, the Board considers both the Code's former and current schedular criteria. If an increased rating is warranted under the revised criteria, that award may not be made effective before the effective date of the amendment, even though there is no prohibition against assigning a rating under the older criteria for the entire period on appeal. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Prior to August 13, 2018, Code 7826 determined that a 10 percent evaluation is warranted for "[r]ecurrent episodes occurring one to three times during the past 12-month period" that "requir[e] intermittent systemic immunosuppressive therapy for control." 38 C.F.R. § 4.118, Code 7826 (2017). A 30 percent evaluation is appropriate for "[r]ecurrent debilitating episodes occurring at least four times during the past 12-month period" that "requir[e] intermittent systemic immunosuppressive therapy for control." Id. A schedular maximum of 60 percent is warranted with "[r]ecurrent debilitating episodes occurring at least four times during the past 12-month period despite continuous immunosuppressive therapy." Id. Beginning August 13, 2018, a 10 percent rating is warranted where there is at least one of the following: "[r]ecurrent documented vasculitic episodes occurring one to three times over the past 12-month period, and requiring intermittent systemic immunosuppressive therapy for control" or "[w]ithout recurrent documented vasculitic episodes but requiring continuous systemic medication for control." 38 C.F.R. § 4.118, Code 7826 (2021). A 30 percent rating is appropriate with "[r]ecurrent documented vasculitic episodes occurring four or more times over the past 12-month period" and "[r]equiring intermittent systemic immunosuppressive therapy for control. Id. A maximum 60 percent rating is warranted with "[p]ersistent documented vasculitis episodes refractory to continuous immunosuppressive therapy." Id. The regulation amended in 2018 further indicated that "systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin." 38 C.F.R. § 4.118(a). Additionally, "[t]wo or more skin conditions may be combined . . . only if separate areas of skin are involved. If two or more skin conditions involve the same area of skin, then only the highest evaluation shall be used." Id. Both the amended Code 7826 and the prior Code 7826 include a note that the disability may be alternately "rate[d] as disfigurement of the head, face, or neck . . . or as scars [including DC 7804] . . . depending upon the predominant disability." 38 C.F.R. § 4.118, Code 4826, Note (2017, 2021). The Veteran's residual scarring from the diabetic ulcers is rated under Code 7804 for unstable and/or painful scars. As noted above, Code 7804 did not change under the August 13, 2018 amendments; the Board will therefore cite the current regulation below. Under Code 7804, one or two scars that are unstable or painful warrants a 10 percent rating. 38 C.F.R. § 4.118. With three or four scars that are unstable or painful, a 20 percent rating is appropriate. Id. Five or more scars that are unstable or painful warrant a 30 percent rating. Id. Note 1 to Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Note 2 states that "[i]f one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars." Id. As an initial matter, the Veteran's diabetic ulcers are currently rated 20 percent disabling under Code 7804. After considering the evidence, the Board finds that a hyphenated Code is more appropriate to rate the Veteran's symptoms. Hyphenated Codes are used when a rating under one Code determines its evaluation based on a residual condition, with the number following the hyphen representing the residual. 38 C.F.R. § 4.27. In this case, the Board has found that the Veteran's diabetic ulcers are more appropriately rated under Code 7826 (primary cutaneous vasculitis) with the residual scarring representing the "predominant disability," rated under 7804 (unstable and/or painful scars). 38 C.F.R. § 4.118. When the Board changes the Code used to rate a veteran's disability, the Board must also determine whether the modification constitutes a severance of service connection. VA has consistently found that protection is afforded to a disability and not the Code used to rate the disability. See VAOPGCPREC 13-92 (modifications of the Code did not change the protected status of the disability). The Court has similarly indicated that there may be times when a change in Code is not equivalent to a severance. See Gifford v. Brown, 6 Vet. App. 269, 271 (1994) (holding that a simple, nonsubstantive administrative decision to correct the part of the body disabled by an in-service injury "did not result in a new rating or the severance of the old rating"). Potential severance was also addressed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Read v. Shinseki, 651 F.3d 1296 (Fed. Cir. 2011). In Read, the Federal Circuit noted that the purpose of section 1159 was to protect veterans with long-standing determinations of service connection from having those determinations suddenly stripped away. Id. at 1301. In addition, it would "ill-serve the purpose of the statute" to classify a change in a disability's situs or associated Code as "a severance of one service connected disability and the establishment of another, where the cause of the disability and the resultant functional impairment were the same . . . ." Id. Moreover, the Federal Circuit found its view was consistent with the interpretation of the statute by VA General Counsel (in VAOPGCPREC 50-91 and 13-92) and by the Court in Gifford. Read, 651 F.3d at 130102. In this case, assigning a rating under Code 7826-7804 does not constitute a severance. Instead, the Board has determined that a different Code more accurately defines the service-connected disability. The Veteran's diabetic ulcers of the right leg are more appropriately described as primary cutaneous vasculitis because they represent an injury caused or exacerbated by damage to his nerves and blood vessels. See MEDLINEPLUS, Diabetic Foot, https://medlineplus.gov/diabeticfoot.html (last visited Nov. 10, 2021). Moreover, the use of Code 7826-7804 does not result in any reduced benefit to the Veteran: he is currently rated 100 percent disabled prior to October 1, 2014, and 20 percent disabled thereafter. The Board's analysis below leads to an increased 40 percent rating effective October 1, 2014. Thus, the assignment of a different Code does not result in an improper severance of service connection for the Veteran's disability. Turning to the facts of the case, a July 2014 private hospital record noted that the Veteran had six arterial ulcers on the lower right leg. The Veteran was hospitalized at a private facility from August 7, to September 22, 2014. Treatment while hospitalized included the placement of stents, debridement, and daily therapy in a hyperbaric chamber (oxygen therapy). An October 2014 VAMC primary care nursing initial evaluation for the Veteran's right lower extremity noted "[a]ching," "[c]onstant" pain. In a January 2015 statement, the Veteran reported additional hyperbaric treatment following his hospitalization and stated that he "might need 10 more treatments in January 2015." A July 1, 2015 VAMC primary care record indicated that the Veteran "[g]ets most of his care in the private sector." A VAMC primary care nursing evaluation from the same day listed "Stabbing" pain that "radiates up/down [the right] leg." A July 2015 VA medical opinion noted "scarring from healing diabetic ulcers." The associated July 2015 VA examination documented residual scars that affected at least five percent but less than 20 percent of his total body; no related scarring to his hands, face, or neck was reported. The VA examination identified "[l]arge areas of scarring and darkened areas on anterior right leg and posterior ankle around Achilles. Some redness noted to Achilles area"; the examination further stated that "[l]arge scarring [was] making it difficult to fully measure accurately." The VA examination also referenced "tenderness . . . to right Achilles due to scarring and residual reddened area. He is unable to walk or stand for prolonged periods due to agitation and pain caused to right Achilles." The VA examination reported that the Veteran drove himself to the appointment and "has a slight antalgic gait due to diabetic ulcers on right Achilles but no other problems noted with ambulation." In a September 2015 statement (received in May 2016), the Veteran reported suffering "daily constant chronic pain" and "permanent limping" following his hospital stay and rehabilitation treatment. An August 2017 VA examination determined that the Veteran's skin ulcers were "now healed with residual scarring" without oral or topical medications in the past 12 months. The VA examination listed four superficial scars of the right lower extremities, which were classified as not painful, not unstable, and not the cause of any functional limitation. In a September 2017 substantive appeal, the Veteran asserted that his diabetic ulcers with residual scarring should have a higher rating because the records document "nerve damage that developed because of the deep ulcer that almost cost me my leg." March 2018 and June 2018 VAMC primary care records failed to mention diabetic ulcers or any treatment therefor. An August 2018 VA examination noted in the medical history section that diabetic ulcers of the right lower extremity had their onset in 2002, apparently when the Veteran was diagnosed with diabetes mellitus type II. The VA examination's medical history section stated that the condition had worsened over time and listed the current symptoms as "Diabetic Ulcers to leg." The VA examination's medical history section referenced "[m]ultiple wound management systems as well as oxygen chamber" when asked "Any treatment, medications or surgery?". Next, in the treatment section, the August 2018 VA examination indicated that the Veteran had not been treated with medication in the past 12 months for any skin condition; the VA examination also reported that the Veteran had not had any treatments or procedures other than systemic or topical medications in the past 12 months. In the physical examination section, the VA examination listed the Veteran's diagnosis as "Diabetic ulcers, right leg" and recorded that the disability affected more than five but less than 20 percent of his total body area (but "None" of his exposed area). When asked to describe the appearance of the diabetic ulcers, the VA examination stated "Hypopigmented macular lesions- Healed scarring at ulcer sites." October 2018 and September 2019 VAMC primary care records failed to mention diabetic ulcers. A May 2020 private cardiology record referenced "a spot on the back of his left heel that is hurting him" without mentioning any ulcers on the legs. A June 2020 private cardiology record noted that the Veteran "reports severe leg pain" and documented a "left leg ulcer behind leg" but no made no mention of any right lower extremity ulcer. A July 17, 2020 private medical center record evaluated the Veteran's extremities, noting "He has ischemic ulcer on back of left leg, he has some muscle wasting bilaterally"; there was reference to ulcers on the right lower extremity. A July 20, 2020 private medical center record, however, identified "bilateral lower extremity wounds." A July 29, 2020 private medical record indicated that the Veteran had "necrotic lesions in both legs. Likely calciphylaxis." A September 4, 2020 private medical record listed "necrotic large eschar ventral aspect of his right lower extremity and lower calf consistent with calciphylaxis in addition to ulcer involving his left lower extremity." Another September 4, 2020 private cardiovascular surgery consult noted that the Veteran was directly admitted to the hospital "for infection of bilateral lower extremity diabetic ulcers." The Veteran later passed away in September 2020. Applying Code 7826 (as effective both prior to and beginning August 13, 2018), the Board finds that a 40 percent rating is warranted for the Veteran's diabetic ulcers of the right lower extremity with residual scars. Although the Veteran was initially hospitalized in July 2014 for the diabetic ulcers, received treatment for the ulcers into 2015, and was again treated for right lower extremity ulcers in July 2020, the predominant disability was the scars that resulted from the diabetic ulcers. These scars represented the predominant disability because they were the sole manifestation of the disability for the majority of the period on appeal (five years between July 2015 and July 2020). The August 2017 and August 2018 VA scar examinations identified four scars of the right lower extremity. The August 2017 VA scar examination indicated that none of the scars were painful or unstable, while the August 2018 VA scar examination listed each scar as painful (though not unstable). In contrast, the July 2014 private hospital record noted that the Veteran had six arterial ulcers on the lower right leg. Resolving reasonable doubt in the appellant's favor, the Board has determined that the Veteran had at least five residual scars from his six ulcers on the lower right leg. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In addition, Board finds that the presence of ulcers in 2014, 2015, and 2020 approximated instability. Thus, 10 percent must be added to the 30 percent rating established for five (or more) unstable or painful scars. 38 C.F.R. § 4.118, Code 7804, Note 2. Because the Veteran is in receipt of the highest schedular rating under Code 7804, there is no basis to award a higher evaluation. The Board has also considered other Codes associated with skin disabilities and has determined that a higher rating would not be warranted under those Codes. For the entire period, Code 7800 is not applicable because the disability affected only the right lower extremity. Code 7801 is not appropriate because the scars were superficial (August 2017 VA examination) and without underlying soft tissue damage (August 2018 VA examination). Code 7802 is not for application because the scars affected a total area of either 46 or 165 square centimeters, according to the August 2017 and August 2018 VA examinations, respectively. Code 7805 is not applicable because the disability's effects are considered under Code 7826-7804. Codes 7806 (dermatitis or eczema), 7807 (American leishmaniasis), 7808 (Old World leishmaniasis), 7809 (discoid lupus erythematosus), 7811 (tuberculosis luposa), 7813 (dermatophytosis), 7815 (bullous disorders), 7816 (psoriasis), 7817 (exfoliative dermatitis or erythroderma), 7818 (malignant skin neoplasms), 7819 (benign skin neoplasms), 7822 (papulosquamous disorders), 7823 (vitiligo), 7824 (diseases of keratinization), 7825 (urticaria), 7827 (erythema multiforme or toxic epidermal necrolysis), 7828 (acne), 7829 (chloracne), 7830 (scarring alopecia), 7831 (alopecia areata), 7832 (hyperhidrosis), and 7833 (malignant melanoma) are not for application because the Veteran did not have these conditions. Additionally, the Board finds that the signs and symptoms he experienced more accurately approximated Code 7826-7804 because the diabetic ulcers were caused or exacerbated by damage to his nerves and blood vessels, with the residual scars best represented by 7804, as discussed above. Prior to August 13, 2018, a rating under Code 7820 (infections of the skin not otherwise listed) is not warranted because Code 7804 is the most appropriate Code for rating the residual scars (as discussed above). Relatedly, Code 7806 for dermatitis is not an appropriate Code because the Veteran's predominant disability was his scars, as noted above, rather than a condition resembling dermatitis. Beginning August 13, 2018, Code 7820 remains an inappropriate Code because the Veteran's right lower extremity diabetic ulcers with residual scars affected at least five percent but less than 20 percent of his total body (and none of his exposed area [hands, face, and neck]) according to the July 2015 and August 2018 VA examinations. Although he underwent daily hyperbaric treatment from August 2014 to January 2015, this more closely approximated systemic treatment for a total duration of six weeks or more over the past 12-month period, which would result in a 30 percent rating under the General Rating Formula for the Skin. Effective August 13, 2018, that rating formula applies to many Codes, including Code 7820. Thus, the Board has determined that a 40 percent rating under Code 7826-7804 is the appropriate Code in this case. This does not end the Board's analysis. The March 2021 Board remand found that the evidence raised the question of entitlement to an extraschedular rating. The claim was then sent to the Director of Compensation Service (Director) for extraschedular consideration. The Director responded with a June 2021 advisory opinion. Per the regulation, an extraschedular disability rating is warranted where the case presents "such an exceptional or unusual disability picture" considering related factors such as "marked interference with employment or frequent periods of hospitalization" that application of the regular schedular standards is impractical. See 38 C.F.R. § 3.321(b)(1). According to 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." Thun, 22 Vet. App. at 115. 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,'" generally described as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. at 11516. "Essentially, the first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms." Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). The third step is to refer the case to the Director, which has been completed. In the June 2021 advisory opinion, the Director determined that a higher evaluation on an extraschedular basis was not warranted because "the objective evidence of record fails to corroborate incapacitating episodes creating marked interference with employment." Moreover, "the evidence does not reveal frequent hospitalizations due specifically to the Veteran's ulcers and related scars or treatment for the ulcers and related scars." Thus, "[n]o unusual or exceptional disability pattern has been demonstrated that would render application of the regular rating criteria as impractical." Initially, the Board notes that it is not bound by the findings of the Director. While the Director's extraschedular opinions may serve to inform the Board's review, the Director's advisory opinion is not evidence and is reviewable by the Board on a de novo basis. See Kuppamala v. McDonald, 27 Vet. App. 447, 45658 (2015). The Board, however, finds that the VA examinations, private treatment records, VAMC treatment records, and the Veteran's statements show that the signs, symptoms, and treatment of his right lower extremity diabetic ulcers with residual scarring were contemplated and considered by the rating criteria. First, the Rating Schedule, particularly 38 C.F.R. § 4.118, is capable of assessing the Veteran's symptomatology. See Long v. Wilkie, 33 Vet. App. 167, 174 (2020) (indicating that Thun's first step requires consideration of whether the Rating Schedule as a whole, as opposed to a specific Code, is capable of assessing the Veteran's symptomatology). In the regulations prior to August 13, 2018, and those thereafter, multiple Codes for rating disabilities of the skin considered "[c]haracteristic lesions of the skin"; area of exposure; and scars, including pain, instability, and depth or underlying soft tissue damage. 38 C.F.R. § 4.118 (2017 and 2021). The level of treatment was also considered, including topical or systemic therapy for varying amounts of time. Id. Beginning August 13, 2018, systemic therapy is defined as "treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin," while topical therapy is defined as "treatment that is administered through the skin." In this case, the evidence shows that the Veteran's diabetic ulcers manifested painful lesions that required hyperbaric therapy and debridement in 2014 and January 2015. Daily hyperbaric therapy closely approximates systemic medication or therapy because it constitutes regular treatment with oxygen. Following hospitalization in 2014 and treatment in 2015, residual painful superficial scars were the predominant disability until July 2020, when the Veteran again experienced painful lesions on the right lower extremity. Such symptoms are contemplated by the Rating Schedule. Furthermore, even if the schedular evaluation were inadequate, the Board finds that the Veteran's disability picture did not reflect "governing norms" such as marked interference with employment or frequent periods of hospitalization. The Veteran's right lower extremity diabetic ulcers with residual scarring resulted in two general periods of hospitalization: July to September 2014, July to September 2020. Considering the five years between these periods of hospitalization, the Board finds that this does not qualify as frequent hospitalization. Additionally, during those five years, residual painful scars were the predominant disability. The July 2015 VA skin examination indicated that his disability impacted his ability to work because he was "unable to walk or stand for prolonged periods due to agitation and pain caused to right Achilles." The August 2017 and August 2018 VA examinations evaluating the Veteran's skin and scars found no impact on the Veteran's ability to work. The Veteran's employment history included working over 20 years as a finance clerk who issued checks, accepted returns, set up debts for overpayment, and performed data entry (as documented in Social Security Administration records). The Board therefore finds that his symptoms did not markedly interfere with employment, as he could work in clerical positions that do not require prolonged walking or standing. In sum, the Board finds that the Veteran's right lower extremity diabetic ulcers with residual scarring more nearly approximated a 40 percent rating under Code 7826-7804. An extraschedular rating is not warranted for this disability because the level of disability and symptomatology were contemplated by the Rating Schedule and the disability did not markedly interfere with employment or require frequent periods of hospitalization. Accordingly, entitlement to a 40 percent rating, but not higher, for diabetic ulcers of the right lower extremity with residual scarring is granted. Entitlement to SMC As part of the appellant's claim for an initial increased rating for diabetic ulcers of the right lower extremity with residual scarring, the Board finds that the question of entitlement to SMC for loss of use of the right foot has been raised by the evidence. For the purpose of SMC, loss of use of a foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. This determination is made based on the actual remaining function of the foot, addressing whether the acts of balance and propulsion could be accomplished equally well by an amputation stump with prosthesis. For example, extremely unfavorable complete ankylosis of the knee; complete ankylosis of two major joints of the lower extremity; shortening of the lower extremity of 3-1/2 inches (or more); and complete paralysis of the external popliteal nerve (with consequent foot drop accompanied by characteristic organic changes, including trophic and circulatory disturbances and other occurrences that confirm complete paralysis of the nerve) each qualify as the loss of use of the involved foot. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 4.63. Prior to September 4, 2020, there is no indication in the private treatment records, VAMC treatment records, or VA examinations that the Veteran's diabetic ulcers of the right lower extremity with residual scarring prohibited with the use of his foot. In fact, the VA examinations specifically recorded that the Veteran's disability did not impact function, with the July 2015 VA examination indicating that the Veteran had driven himself to the appointment and "ha[d] a slight antalgic gait due to diabetic ulcers on right Achilles but no other problems noted with ambulation." The Veteran reported in a September 2015 statement (received in May 2016) that he experienced "permanent limping" following his hospital stay and rehabilitation treatment. On September 4, 2020, however, a private cardiovascular surgery consultation noted that the Veteran was unable to walk due to the pain from his diabetic ulcers. A September 10, 2020 private hospital discharge summary similarly indicated that the Veteran "had wounds to both legs for many years . . . The wounds to the legs had progressively deteriorated in past 4 months specially being very painful in last 4 days." Considering this evidence, the Board finds that the pain in the Veteran's right lower extremity was such that he was unable to walk due to pain starting September 4, 2020. Resolving reasonable doubt in the Veteran's favor, he experienced a level of impairment beginning September 4, 2020, which approximated the loss of use of the right foot. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. Ripplinger, 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.