Citation Nr: 21030538 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-53 479 DATE: May 19, 2021 ORDER Entitlement to a disability rating in excess of 30 percent on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1) for left foot tarsal tunnel syndrome and pes planus prior to July 14, 2013 is denied. Entitlement to a disability rating in excess of 50 percent on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1) for migraine headaches prior to July 14, 2013 is denied. FINDINGS OF FACT 1. Prior to July 14, 2013, the preponderance of the evidence weighs against finding that the symptoms or impairments of the Veteran's left foot tarsal tunnel syndrome and pes planus are not fully contemplated by the rating criteria; therefore, his left foot disability is not considered exceptional. 2. Prior to July 14, 2013, the preponderance of the evidence weighs against finding that the Veteran has symptoms or impairments of migraine headaches which have not been contemplated by diagnostic code (DC) 8100; thus, his migraine headaches are not considered an exceptional disability. CONCLUSIONS OF LAW 1. Prior to July 14, 2013, the criteria for a disability rating in excess of 30 percent on an extraschedular basis for left foot tarsal tunnel syndrome and pes planus have not been met. 38 C.F.R. § 3.321(b)(1); DC 5284. 2. Prior to July 14, 2013, the criteria for a disability rating in excess of 50 percent on an extraschedular basis for migraine headaches have not been met. 38 C.F.R. § 3.321(b)(1); DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 1991. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded for additional development in November 2018 and August 2020 Board decisions. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). In a March 2020 rating decision, the Veteran was granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective July 14, 2013, the day after the Veteran was last employed. In an August 2020 Board decision, the Veterans' claims for increased ratings on an extraschedular basis for a left foot disability and migraine headaches prior to July 14, 2013, were referred to the Director of the Compensation service for consideration of the assignment of an extraschedular evaluation pursuant to 38 C.F.R. § 3.321(b)(1). In a December 2020 advisory opinion, the Director found that prior to July 14, 2013, extraschedular evaluations for left foot tarsal tunnel syndrome and pes planus, and migraine headaches were not warranted. Extraschedular Ratings Generally, disability ratings are determined by rating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in VA's Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In exceptional cases where the criteria in VA's Rating Schedule criteria are found to be inadequate, an extraschedular rating that is commensurate with the average earning capacity impairment caused by the service-connected disability is warranted. An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). Consideration of an extraschedular rating requires a three-step inquiry. The first question is whether the schedular rating criteria adequately contemplate the veteran's disability picture. If the schedular evaluation does not contemplate the level of disability and symptomatology shown and is found inadequate, then the second inquiry is whether the exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. See Thun v. Peake, 22 Vet. App. 111 (2008). The first Thun element compares a claimant's symptoms to the rating criteria, while the second addresses the resulting effects of those symptoms. Thus, the first and second Thun elements, although interrelated, involve separate and distinct analyses. Yancy v. McDonald, 27 Vet. App. 484, 495 (2016). If the veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Services to determine whether an extraschedular rating is warranted. See Thun, 22 Vet. App. 111. Recently, the Court revisited the meaning of Thun's first element, holding that it is not "a mechanical test that is satisfied whenever a veteran presents a symptom not expressly listed in the [DC]." Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Vet. App. Dec. 30, 2020). The key to the first Thun element is exceptionality and requires a "totality of the factors" inquiry into whether the veteran's disability picture as a whole (i.e., full symptomatology) presents an impairment that is so exceptional that the rating schedule is not capable of assessing it in the first instance. Id. The Court held that "the sole focus of Thun's first step is on the ability of the ratings schedule to evaluate any impairment manifested by the veteran's symptomology" and that symptomology "is exceptional . . . when it is of such nature or severity that conventional ratings tools are not adequate to evaluate it properly." Id. at 10. The Court further noted that "functional effects" are relevant to Thun's second step, while symptoms and functional impairments are the "operative focus" of Thun's first step. Id. at 12. As an initial matter, the Board notes that the previously mentioned Director's decision that an extraschedular rating is not warranted is not evidence, but rather, the de facto AOJ decision. The Board must conduct a de novo review of this decision on appeal. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). 1. Entitlement to a disability rating in excess of 30 percent on an extraschedular basis for left foot tarsal tunnel syndrome and pes planus prior to July 14, 2013. The Veteran's left foot tarsal tunnel syndrome and pes planus has been rated 30 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5284, for other foot injuries. Under DC 5284, a 10 percent rating is warranted for a foot injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. The words "moderate," "moderately severe," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. "Loss of use of a foot" is defined as no effective function remaining 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. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Examples under 38 C.F.R. § 4.63 that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent foot drop. DC 5276 provides ratings for acquired flatfoot (pes planus). Under DC 5276, a 10 percent rating is warranted for moderate symptoms such as the weight-bearing line over or medial to great toe, inward bowing of the tendo achilles, pain on manipulation and use of the feet. A 30 percent is warranted for bilateral severe flatfoot characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating requires bilateral pronounced flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendon achilles on manipulation, not improved by orthopedic shoes or appliances. Turning to the relevant evidence during the appeal period, in October 2011, the Veteran was afforded a VA examination for his left foot tarsal tunnel syndrome and pes planus. At this examination, the Veteran reported that anytime he puts weight on his left foot, it is painful. Concerning his pes planus, the examiner found that the Veteran's symptoms included pain on use and manipulation accentuated, indication of left foot swelling, no characteristic calluses, and extreme tenderness of the plantar surface that is not improved by orthopedic shoes or appliances. The examiner also found evidence of decreased longitudinal arch height on weight-bearing in the left foot and noted that there was objective evidence of marked pronation of the left foot not improved by orthopedic shoes. The examiner found that the weight bearing line of the left foot fell over or medial to the great toe. He reported no inward bowing of the achilles tendon, and no marked inward displacement and severe spasm of the achilles tendon on manipulation. In terms of his left foot tarsal tunnel syndrome, the 2011 examiner noted that the Veteran's disability caused him to favor his left foot while ambulating and noted that he constantly used braces and a cane for walking. The examiner stated that there was no evidence of functional impairment of his left foot such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. VA treatment records reflect that the Veteran's left foot disability symptoms include constant pain and weakness in his left foot which impairs his ability for prolonged standing, walking, jumping and heavy lifting. The Veteran reported numbness and tingling in his left toes, a pin pricking pain in his left big toe, and a burning sensation in his left foot. He reported taking hydrocodone and anti-inflammatory medications. His primary care physician noted that his condition was not improving with current therapy such as physical therapy, braces, injections and oral pain and anti-inflammatory medications. See September 2012 VA treatment record, administrative note; see also December 2011, June 2012, and October 2012 Podiatry outpatient treatment notes. Analysis Initially, the Board notes that an August 2020 Board decision denied a disability rating in excess of 30 percent for left foot tarsal tunnel syndrome and pes planus for the entirety of the appeal period. Therefore, the remaining question for the Board is whether the Veteran is entitled to a disability rating in excess of 30 percent on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that the Veteran's left tarsal tunnel syndrome and pes planus are fully capable of evaluation under the rating schedule. The symptoms and impairment described by the Veteran and physicians are contemplated by DC 5284 and DC 5276. The Veteran's left foot symptoms include pain on use and with manipulation, swelling, extreme tenderness of the plantar surface of his left foot, and the Veteran's reports of weakness, numbness, tingling and a burning sensation in his left foot. His left foot symptoms cause functional impairment that includes limitation of motion, difficulty with balance and propulsion and weight bearing. These impairments effect the Veteran's ability to engage in prolonged walking, standing, jumping and heavy lifting and require him to use mobility assisting devices including a cane and braces. The Veteran's symptoms, and impairment caused by his symptoms, are precisely what the rating criteria is designed to evaluate. See Long at 12 (noting that the focus of the first step of the extraschedular analysis is on whether the impairment caused by the veteran's symptomatology is capable of evaluation under the rating schedule.) Specifically, the October 2011 VA examiner described symptoms of the Veteran's left foot disability and resulting functional impairment that directly correlate to DC 5284 and DC 5276 and include symptoms and impairments listed in the disability benefits questionnaire (DBQ) designed to evaluate foot disabilities. The VA examiner found objective evidence of marked pronation of the left foot, noting that the weight bearing line falls over or medial to the great toe on the left foot, and found no evidence of inward bowing of the achilles tendon, and no evidence of marked inward displacement and severe spasm of the achilles tendon on manipulation. See DC 5276. In terms of his left foot tarsal tunnel syndrome, the 2011 examiner noted that the Veteran's disability caused him to favor his left foot while ambulating and noted that the Veteran constantly used braces and a cane for walking. The examiner stated that there was no evidence of functional impairment of his left foot such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. This statement correlates directly to 38 C.F.R. § 4.63 and shows that the Veteran's symptoms are contemplated by the rating criteria. Finally, the Board notes that how a disability specifically impacts an individual veteran is not relevant to the analysis of whether a disability is considered exceptional. See Long at 12 (explaining that the first step of the extraschedular inquiry focuses on symptoms and that the "resulting effects of those symptoms" are relevant to the second part of the analysis). Here, the Veteran reported that the medications he takes to alleviate pain caused by his left foot disability make him feel nauseous and drowsy. See November 2013 VA foot examination. Although side effects from medications are not specifically addressed in DC 5284 or DC 5276, the Board finds that side effects from medications are not relevant to whether his left foot disability is considered exceptional under the first step of the Thun analysis. In sum, because there is a schedular mechanism to account for the Veteran's left foot symptoms and functional impairments, his left foot disability cannot be considered exceptional. Therefore, because the first step of the Thun analysis is not met, further consideration of an extraschedular rating for the Veteran's left foot tarsal tunnel syndrome with pes planus is not warranted. 2. Entitlement to a disability rating in excess of 50 percent on an extraschedular basis for migraine headaches prior to July 14, 2013. The Veterans headaches are rated under Diagnostic Code 8100. Under this Diagnostic Code, a 10 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The phrase "characteristic prostrating attacks" is used in the criteria corresponding to 10 percent and 30 percent ratings under DC 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. Pursuant to Dorland's Illustrated Medical Dictionary 1531 (32d ed. 2012), prostration is defined as "extreme exhaustion or powerlessness." Thus, the phrase "characteristic prostrating attacks" is understood to describe migraine attacks that typically produce extreme exhaustion or powerlessness. In nonmedical terms, prostrating is defined as lying flat or at full length, to reduce to physical weakness or exhaustion, or to reduce to helplessness. The rating criteria for a 50 percent rating contains several undefined phrases. The descriptive phrase "very frequent" connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase "completely prostrating" generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be "prolonged," which is defined as "to lengthen in time: extend duration: draw out: continue, protract." Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be "productive of severe economic inadaptability." During the appeal period, a June 2012 entry in the VA treatment records noted constant, throbbing migraines, exacerbated by movement, light, sounds and smells and alleviated by a dark room and quietness. During this pain assessment visit, the Veteran reported that he had been experiencing nausea and vomiting the last couple of years associated with his migraines. In an August 2012 entry, the Veteran reported cold sweats, photo, and phono sensitivity, seeing "stars", and described Botox treatment for his migraines. Refractive error was also listed as an active problem. A September 2012 statement from the Veteran's primary care physician, noted that symptoms of the Veteran's migraines included severe, incapacitating episodes with phonophobia, photophobia, nausea, and vomiting. He reported that the Veteran's migraines were triggered by consistent loud noises, solvent chemicals, fumes, and excessive heat or cold. See September 2012 Administrative Note, Tuskegee VA medical center. Another September 2012 letter by P.P., M.D. from the neurology service at the VA medical center noted that the Veteran experienced daily headaches as well as two to three severe headaches per week. The physician reported that the Veteran experienced throbbing pain behind his right eye with associated nausea, vomiting, light, and sound sensitivity that was made worse by movement. Analysis As will be explained below, the Board finds that the Veteran's migraine headaches are fully capable of evaluation under the rating schedule. Because there is a schedular mechanism to account for the Veteran's symptoms and functional impairment, his migraine headaches cannot be considered an exceptional disability. Therefore, the first step of the Thun analysis is not met. Here, the Veteran's migraine symptoms include severe incapacitating episodes with phonophobia, photophobia, nausea, vomiting and refractive error. However, significantly, it is not the presence of symptoms per se that render a disability exceptional, but rather whether the impairment caused by the symptoms is capable of evaluation under the rating schedule. See Long v. Wilkie, No. 16-1537, 2020 U.S. App. Vet. Claims LEXIS 2371 (Vet. App. Dec. 30, 2020) (recognizing that it is the impairment caused by a Veteran's symptomatology that gives rise to disability). In this case, although the rating schedule for migraine headaches, DC 8100, does not specifically address symptoms of nausea, vomiting and photo and phono sensitivity, the impairment caused by these symptomsspecifically, completely prostrating and prolonged migraine attacks which render the Veteran entirely powerless, necessitate lying down in a dark room and are "productive of severe economic inadaptability" are precisely what is contemplated by the schedular criteria. To state it another way, the Veteran's nausea, vomiting and photo and phono sensitivity although not listed in the rating criteria, produce the same functional impairment (incapacitating episodes) as the rest of his migraine symptoms which include throbbing pain and severe headaches. Further, a diagnostic code does not have to list every symptom of a disability to fully contemplate the impairments caused by that disability. See Long at 8-10 (explaining that a diagnostic code is not incapable of evaluating a disability simply because the disability presents with symptoms that are not specifically identified as part of the diagnostic criteria). In this case, it is reasonable for the Board to infer that the rating criteria evaluates the full extent of the Veteran's migraine disability picture because nausea and photo and phono sensitivity are symptoms commonly associated with migraines; and thus, arguably, contemplated by the diagnostic code. These symptoms were specifically listed in the VA examination pertaining to headaches and required the examiner to check the box if the Veteran experienced the specific symptom, which also supports the argument that these are reasonably expected symptoms of migraine headaches. As noted above, the 50 percent rating contemplates very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The term "completely prostrating," as used in the rating schedule contemplates the complete scope of all symptoms to the extent they result in extreme exhaustion or powerlessness with essentially total inability to engage in ordinary activities. Therefore, the symptoms associated with his headaches are contemplated by the rating schedule's use of a broad and non-exclusive continuum of symptoms that cause extreme exhaustion or powerlessness. Finally, any diagnosed visual impairment secondary to the Veteran's migraine headaches could have been rated adequately under the VA schedule for rating disabilities pertaining to the eye, 38 C.F.R. § 4.79. (Continued on the next page) In summary, the Board has considered the Veteran's migraine disability picture and the tools available under the VA's schedule for rating disabilities and finds that there is no evidence of symptoms or impairment related to the Veteran's migraine headaches that are not contemplated by the available schedular tools used to rate his disability. The salient point to make is that a disability is exceptional only if it cannot be adequately rated under the rating schedule. A mere comparison between symptoms and the diagnostic criteria, in this case, DC 8100 does not indicate whether a disability is exceptional. Therefore, the Board finds that the evidentiary record does not reasonably raise the prospect that the Veteran's migraine headaches are not and cannot be adequately rated under the rating schedule. Because the threshold step of the Thun extraschedular analysis is not met, the preponderance of the evidence is against finding that a rating in excess of 50 percent for migraine headaches on an extraschedular basis prior to July 14, 2013, is warranted. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alison M. Mecone, 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.