Citation Nr: 21022272 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 14-03 685 DATE: April 15, 2021 ORDER Prior to December 22, 2018, entitlement to an extraschedular rating for hypopituitarism pursuant to 38 C.F.R. § 3.321(b)(1) is denied. From December 22, 2018, entitlement to an extraschedular rating for hypopituitarism pursuant to 38 C.F.R. § 3.321(b)(1) is dismissed as moot. FINDINGS OF FACT 1. Prior to December 22, 2018, to the extent that the rating criteria did not contemplate the Veteran’s symptoms for hypopituitarism, her disability picture did not exhibit other factors such as marked interference with employment or frequent periods of hospitalization. 2. The award of a total disability rating due to individual unemployability (TDIU) for the period from December 22, 2018 renders the issue of entitlement to an extraschedular rating for hypopituitarism moot during this time period. CONCLUSIONS OF LAW 1. Prior to December 22, 2018, the criteria for an extraschedular rating for the Veteran’s service-connected hypopituitarism are not met. 38 C.F.R. § 3.321(b). 2. From December 22, 2018, the issue of entitlement to a higher initial rating for hypopituitarism on an extraschedular basis is moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to June 1994. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for hypopituitarism and assigned a noncompensable disability rating, effective January 25, 2010. In June 2015 the Veteran filed a notice of disagreement (NOD) and disagreed with the initial rating assigned as to her hypopituitarism. In December 2013 the RO issued a statement of the case (SOC) and in December 2013 the RO issued a rating decision which assigned a retroactive increase for hypopituitarism with an evaluation of 20 percent prior to October 10, 2011 and noncompensable rating from that date. In August 2015 the Veteran filed a substantive appeal (via VA Form 9). In January 2017 the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the record. In October 2017 the Board remanded the Veteran’s claim for further evidentiary development, specifically, to refer the Veteran’s claim to the Director of the Compensation and Pension Service (Director) to determine whether an extraschedular rating is warranted. Entitlement to an extraschedular rating for hypopituitarism under 38 C.F.R. § 3.321(b) Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's hypopituitarism is currently rated 40 percent disabling by analogy to diabetes insipidus under 38 C.F.R. § 4.119, DC 7909. During the pendency of this appeal, VA issued a Final Rule amending 38 C.F.R. § 4.119 (Schedule of ratings endocrine system), including the rating criteria for diabetes insipidus under Diagnostic Code (DC) 7909 ("amended DC 7909"). See 82 Fed. Reg. 50802-50807 (Final Rule published Nov. 2, 2017 and effective December 10, 2017). Under pre-amendment DC 7909, 20 percent rating is assigned for polyuria with near-continuous thirst. A 40 percent rating is assigned for polyuria with near-continuous thirst, and one or more episodes of dehydration in the past year not requiring parenteral hydration. A 60 percent rating is assigned for polyuria with near-continuous thirst, and one or two documented episodes of dehydration requiring parenteral hydration in the past year. A total schedular rating is assigned for polyuria with near-continuous thirst, and more than two documented episodes of dehydration requiring parenteral hydration in the past year. Under amended DC 7909, a 10 percent rating is assigned for diabetes insipidus with persistent polyuria or requiring continuous hormonal therapy. A higher, 30 percent rating is assigned for three months after initial diagnosis; an accompanying note provides, "Thereafter, if diabetes insipidus has subsided, rate residuals under the appropriate diagnostic code(s) within the appropriate body system." The Veteran contends that her hypopituitarism is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b)(1). An extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). The essential question in such cases is whether the criteria in the applicable diagnostic code contemplate the symptoms exhibited and, if so, whether there is marked interference with employment or frequent hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Pursuant to Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009), the Board has jurisdiction to review denial of extraschedular rating on appeal under 38 C.F.R. § 3.321(b) where the RO had previously referred claim for an increased rating to the Director, who had found that extraschedular rating was not warranted. The Board reviews the entirety of the Director's decision de novo and is thus authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015). Cf. Wages v. McDonald, 27 Vet. App. 233, 239 (2015) (“[T]he Director's decision [pursuant to 38 C.F.R. § 4.16(b)] is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence”; the Board conducts de novo review of the Director's decision denying extraschedular consideration under 38 C.F.R. § 4.16(b)). In October 2017 the Board remanded the Veteran's claim for entitlement to an extraschedular rating for hypopituitarism, to include consideration for the collective impact of multiple service-connected disabilities pursuant to 38 C.F.R. § 3.321(b)(1). It is important to note that, since this decision, VA has amended its adjudication regulation pertaining to extraschedular consideration of a service-connected disability in exceptional compensation cases. This rule clarifies that an extraschedular evaluation is to be applied to an individual service-connected disability when the disability is so exceptional or unusual that it makes application of the regular rating schedule impractical. An extraschedular evaluation may not be based on the combined effect of more than one service-connected disability. 82 Fed. Reg. 57,830 (Dec. 8, 2017). In Thurlow v. Wilkie, 30 Vet. App. 231(2018), the Court found that this amendment applied retroactively as it does not have an impermissible retroactive effect. Therefore, discussion of an extraschedular rating based on the collective impact of multiple disabilities is not warranted in this case. In October 2020 the Director issued an administrative review of extraschedular consideration under 38 C.F.R. § 3.321(b)(1) for the Veteran’s service-connected hypopituitarism. The Director recommended that the Board deny an increased evaluation on an extraschedular basis throughout the appeal period. The Director explained that the Veteran’s hypopituitarism did not require any parenteral hydration in the past year and stated that there has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors. Thus, the Director determined that entitlement to an extraschedular rating for hypopituitarism under 38 C.F.R. § 3.321(b)(1) is not warranted. As noted, the Board review the evidence de novo and is not bound by the Director’s determination in any way. Here, however, there is no evidence of frequent periods of hospitalization due to her hypopituitarism. The evidence also does not indicate that the Veteran’s hypopituitarism by itself caused marked interference with her employment. On the July 2019 Veterans Application for Increased Compensation Based on Unemployability (VA Form 21-8940) the Veteran stated that multiple disabilities, including her service-connected major depressive disorder and hypothyroidism, prevented her from securing or following any substantially gainful occupation. At the January 2017 Board hearing the Veteran testified that she was working full-time as a teacher’s aide. Also, an April 2015 VA examiner opined that the Veteran’s hypopituitarism does not impact her ability to work. The VA examiner noted that the Veteran is capable of performing chores, driving, and managing her finances and was employed. This evidence reflects that the hypopituitarism did not cause marked interference with employment, meaning interference with the Veteran’s ability to perform her job beyond that contemplated by the current 40 percent rating See 38 C.F.R. § 4.1 (“Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability”). The Board finds that although the schedular criteria does not fully contemplate all of the symptoms attributable to the Veteran’s disability, an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is not warranted as the Veteran’s disability picture did not exhibit other factors such as marked interference with employment or frequent periods of hospitalization. To the extent that the Board’s finding above conflicts with the October 2017 Board remand which determined that the medical evidence showed an exceptional disability picture, the Board in this case finds differently for the above reasons. Smiddy v. Wilkie, 32 Vet. App. 350, 358 (2020) (in the extraschedular rating context, the Board’s reasons-or-bases requirement obligates it to “explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage”) (quoting Ray v. Wilkie, 31 Vet. App. 58, 67 (2019)). Thus, the schedular rating of 40 percent is appropriate and the preponderance of the evidence is against a finding that the schedular criteria do not contemplate the symptoms and that there is marked interference with employment. For the period from December 22, 2018, the Veteran has been awarded a TDIU. Although the Court had previously indicated that the award of a TDIU did not render an extraschedular issue moot, see Colayong v. West, 12 Vet. App. 524, 527 (1999) (VA "conceded... that the veteran's TDIU rating claim was a matter separate from the adjudication of her schedular or extraschedular rating claims and also that even if a TDIU rating is awarded, the veteran is still entitled to fair adjudication of those other claims"), it reached the opposite result in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014). In Johnson, the Federal Circuit held that the TDIU provision only accounts for instances in which a veteran's combined disabilities establish total unemployability, i.e., a disability rating of 100 percent. Id. at 1366. On the other hand, 38 C.F.R. § 3.321(b)(1) performs a "gap-filling" function and accounts for situations in which a veteran's overall disability picture establishes something less than total unemployability, but where the collective impact of a veteran's disabilities is nonetheless inadequately represented. Id. The Federal Circuit thus indicated that an award of a TDIU would result in a veteran being deemed to have total unemployability, with no "gap" to fill by 38 C.F.R. § 3.321(b). Thus, based on the more recent Federal Circuit case, the Board finds that the award of a TDIU for the claim period from December 22, 2018 renders the issue of entitlement to an extraschedular rating moot from December 22, 2018. The matter must therefore be dismissed. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Miller, Associate 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.