Citation Nr: 21011466 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-33 442 DATE: March 2, 2021 ORDER A higher 30 percent initial rating is granted for a decubitus ulcer of the left foot and residual scar. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The decubitus ulcer on the Veteran’s left foot is analogous to a severe foot injury. CONCLUSION OF LAW The criteria are met for a higher 30 percent rating, though no greater, for this decubitus ulcer on the Veteran’s left foot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC/Code) 5299-5284. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1975 to April 1982. This appeal to the Board of Veterans’ Appeals (Board) is from a March 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an initial rating higher than 20 percent for the decubitus ulcer of the left foot with residual scar Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. “Staged” ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The decubitus ulcer of the Veteran’s left foot and residual scar are rated as 20 percent disabling by analogy under a hyphenated diagnostic code essentially for unstable or painful scars. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 7899-7804. Because there is no specific code for decubitus ulcers, this disability is rated by analogy under the code for “painful or unstable scars.” Id. Analogous codes are used when there is no specifically applicable diagnostic code and the disability is rated by analogy. 38 C.F.R. § 4.27. The Veteran was first examined by VA for his decubitus ulcer in December 2016. He reported worsening pain and callus that occasionally forms and sloughs off. He reported frequent breakdown of the scar, which is painful and makes it difficulty to ambulate. During that initial examination, he had an actual open wound on this foot owing to this disability. The Veteran more recently was reexamined in June 2019. He said that he now had a scar on his left foot that was both painful and unstable with frequent loss of covering skin over the scar. The examiner surmised the Veteran’s left foot decubitus ulcer scar would have no impact to any functional activities in an occupational setting, but that assessment does not appear to consider his statements that his ulcer tends to reopen making ambulation painful. The Veteran was most recently examined in September 2020. The examiner confirmed the diagnosis of decubitus ulcer of the left foot. The Veteran reported having pain when walking more than 10 to 15 minutes and even more pain when the ulcer cracks open with drainage, which happens approximately twice a month, each time lasting about one week in duration. The examiner observed the ulcer chronically compromised weight bearing and required arch supports, custom orthotic inserts, or shoe modification. The examiner described the severity of the Veteran’s foot injury as moderate to severe.   The Board resultantly finds that the decubitus ulcer of the Veteran’s left foot is more appropriately rated under DC 5284 for “other” foot injury. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case", and the Board can choose the diagnostic code to apply so long as it is supported by reasons and bases as well as the evidence. See 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). It is permissible to switch Diagnostic Codes to reflect more accurately a claimant's current symptoms. See also Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the Diagnostic Code associated with it is changed to determine more accurately the benefit to which a veteran may be entitled). DC 5284 refers to other foot injuries and applies to foot disabilities for which there is not already a specific diagnostic code. When a disability is specifically listed in the Rating Schedule, it may not be rated by analogy under DC 5284. See Copeland v. McDonald, 27 Vet. App. 333 (2017). Here, though, as there is no specific diagnostic code for a decubitus ulcer, its use is allowed. Under DC 5284, a 10 percent rating is warranted for moderate injury, a 20 percent rating for moderately severe injury, and a 30 percent rating for severe injury. A Note in Diagnostic Code 5284 instructs that, with actual loss of use of the foot, rate at a maximum 40 percent. 38 C.F.R. § 4.71a, DC 5284. These descriptive words “moderate” “moderately severe” and “severe” are not defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. It should also be noted that use of terminology such as “slight”, “moderate”, or “severe” by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.   Here, after resolving all reasonable doubt in the Veteran’s favor, the Board finds that the most probative evidence shows the decubitus ulcer of his left foot amounts to a “severe” injury of this foot when considering the breakdown of the ulcer and consequent scar repeatedly and the effect this, in turn, has on his functioning, especially in terms of limiting his ambulation (walking) because of the extent of his pain and discomfort. He therefore is entitled to a higher 30 percent rating. The Board also bases this conclusion on the effect the ulcer has on his ability to bear weight on it when it cracks and opens. That said, an even higher 40 percent rating for this left foot disability is not warranted. The evidence of record does not support finding that the Veteran has complete loss of use of his left foot or anything amounting to that. Therefore, he does not have the required loss of use for an even greater 40 percent rating. REASONS FOR REMAND Entitlement to a TDIU is remanded. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the ratings enunciated in § 4.16(a), an extra-schedular TDIU should be considered if there is suggestion the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b). The evidence of record suggest the Veteran has been unable to obtain and maintain substantially gainful employment. However, he does not presently have sufficient ratings for his service-connected disabilities to, in turn, entitle him to schedular consideration of this requested TDIU benefit under § 4.16(a). Therefore, his only recourse is extra-schedular consideration, instead, under the alternative special provisions of § 4.16(b). The Board cannot grant an extra-schedular TDIU in the first instance. At most, the Board instead must refer the claim to the Director of the Compensation Service for this initial consideration. Accordingly, this claim is REMANDED for the following action: 1. Ask the Veteran to provide all relevant information regarding his periods of employment and unemployment during the rating period under consideration. He should include dates, information about the employers, information about the job duties performed, and documentation regarding the income received from the employment. He should likewise provide any signed releases necessary for VA to obtain relevant information from his places of employment. 2. After receiving this additional information, refer this TDIU claim to the Director of the Compensation Service or designee for consideration of whether this benefit is warranted on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.