Citation Nr: 21031376 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 13-34 190A DATE: May 21, 2021 ORDER Entitlement to a compensable rating for leiomyosarcoma, to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The evidence does not demonstrate active leiomyosarcoma or non-compensated residual impairment of function. 2. The Veteran does not have a current disability of the endocrine system. CONCLUSION OF LAW The criteria for a compensable evaluation for leiomyosarcoma, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.73, 4.118, Diagnostic Codes 5329 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1975 to October 1987, June 2004 to June 2005, and from April 2006 to July 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In May 2017 the Veteran testified during a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. This matter was previously before the Board in October 2020, at which time it was remanded for further development. Disability Evaluations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or an illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In general, when 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). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Entitlement to a compensable rating for leiomyosarcoma The Veteran contends that he is entitled to a compensable disability rating for leiomyosarcoma of the bladder, which is rated under Diagnostic Code 5399-5329. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the rating schedule that most closely identifies the part or system of the body involved; the last two digits will be "99" for all unlisted conditions. In this case, "5399" is for muscle injuries. Diagnostic Code 5329 provides that a soft tissue sarcoma of the muscle fat or fibrous connective tissue will be assigned a 100 percent evaluation. A rating of 100 percent shall continue beyond the cessation of any surgery, radiation treatment, antineoplastic chemotherapy, or other therapeutic procedures. Six months after the discontinuance of such treatment, the appropriate disability rating shall be determined by mandatory VA examination. Any change in evaluation based upon that or any subsequent examination shall be subject to the provisions of § 3.105(e) of this chapter. If there has been no local recurrence or metastasis, the disability is rated on residual impairment of function. Therefore, to obtain a higher initial disability rating for leiomyosarcoma, the evidence must demonstrate active disease or residual impairment of function. A November 2010 VA examination reported that the Veteran was diagnosed with leiomyosarcoma in 2003 and treatment included multiple surgeries to the abdominis region, lower extremity and left upper extremity around the shoulder girdle. This was followed by 36 radiation treatments; the last of such treatments was in February 2004 and the last surgery was in September 2010. A March 2011 Hematology and Oncology Outpatient Note indicated that the Veteran was first diagnosed with well-differentiated leiomyosarcoma in 2003 when it was found on CT scan behind the bladder. Surgical resection was done but margins were positive. There were 36 radiation treatments but a CT scan in February 2011 was negative for evidence of active disease. The Veteran had recurrent lipomas, but the association between lipomas and leiomyosarcomas was unclear as there was no readily identifiable syndrome describing their association. The Veteran submitted correspondence in December 2013 and stated he had cancer and awakened daily in fear of its continuation. The skin on his buttocks was damaged and "some days it itches like poison ivy, some days it just oozes and bleeds." The leiomyosarcoma left the Veteran "a shell of the man [he] used to be" and he recounted the five tumors that were removed but were found to be fatty tumors. The Veteran never had tumors prior to his cancer diagnosis so his doctors had to assume his cancer had returned until proven otherwise. At the May 2017 Board hearing, the Veteran's representative testified that the Veteran had "a continuing series of horrific medical conditions that all tie to leiomyosarcoma." He had eight surgeries and 36 radiation treatments, and ultimately developed mass cell activation disorder in 2016. When the leiomyosarcoma was removed, the surgeon removed a third of his bladder which resulted in voiding issues. He also had CT scans twice per year which required radioactive iodine contrast and, as a result, the Veteran developed an iodine allergy causing him to go into anaphylactic shock on at least three different occasions. The representative submitted medical studies showing a link between leiomyosarcoma and the development of basil cell cancer, which the Veteran developed around his nose. As a result, he had to have about a quarter of his nose removed. The Veteran also developed issues with his sinuses and had several large scars on his body from the surgeries. In May 2020, the RO granted service connection for psoriasis and eczema, mid lower abdominal area (muscle group XIX), residual painful scars, right upper arm residual scar, right lateral mid-thigh residual scar, left lateral mid-thigh residual scar, mid abdomen residual radiation burn scar, and right buttock residual radiation burn scar. These conditions were found to be residuals of the Veteran's leiomyosarcoma and the radiation therapy. The Veteran received a VA Endocrine Diseases examination in August 2020 and the examiner noted his reports of being given radioactive iodine and going into anaphylactic shock. She concluded, however, that the Veteran did not have a diagnosis of an endocrine condition. In February 2021, the RO granted service connection for a partial cystectomy with urinary dysfunction, finding that the condition had been established as related to the service-connected leiomyosarcoma. Initially, the Board notes that the Veteran's leiomyosarcoma was removed in 2010 and that there has been no recurrence or evidence of metastasis. See November 2010 VA examination report. While the Veteran has credibly reported that he needed five additional surgeries connected to his cancer, the evidence reflects that these were for lipoma lumps that were non-cancerous. Thus, there is no evidence of current cancer and, under Diagnostic Code 5329, the disability should be rated on residual impairment of function. The evidence reflects that the Veteran is currently service connected for psoriasis and eczema, mid lower abdominal area (muscle group XIX), residual painful scars, right upper arm residual scar, right lateral mid-thigh residual scar, left lateral mid-thigh residual scar, mid abdomen residual radiation burn scar, right buttock residual radiation burn scar, and a cystectomy. As a result of grants of service connection following the Veteran's Board hearing in this matter, the only residual of leiomyosarcoma for which service connection is not in effect is anaphylactic shock, which the Veteran contends is due to an allergy caused by the repeated use of radioactive iodine contrast during his multiple CT scans. The Board has considered the statements made by the Veteran relating his anaphylactic shock to his service-connected leiomyosarcoma. However, lay evidence can be considered competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, the Veteran is not competent to provide testimony regarding a diagnosis of a current endocrine disorder. Because these types of disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is considered competent to make. The most probative medical evidence of record reflects that the Veteran does not have a current diagnosis of a disability of the endocrine system. As such, the Board finds that the evidence is against the assignment of an initial compensable disability rating or a separate disability rating for additional nonservice-connected residuals, and the claim is denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration The Board notes that ordinarily, in the evaluation of service-connected disabilities, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); 38 C.F.R. § 3.321(b)(1). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining entitlement to an extraschedular rating. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found inadequate, it must be determined whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and the disability picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, the case must be referred to VA's Director of Compensation Services to determine whether the disability requires the assignment of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1). The United States Court of Appeals for the Federal Circuit had held that an extraschedular rating may be assigned which considers the combined impact of multiple service-connected disorders. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014); overruling Johnson v. Shinseki, 26 Vet. App. 237, 248 (2013). However, in Yancy v. McDonald, 27 Vet. App. 484, 496 (2016) it was held that when there are multiple service-connected disorders the Board's jurisdiction was limited to only those service-connected disorder(s) on direct appeal because it lacked jurisdiction to consider whether extraschedular referral for any disability or combination of disabilities not in appellate status, just as it lacks jurisdiction to determine the proper schedular rating for a disability not on appeal. Yancy, 27 Vet. App. at 496 (2016). In this regard, on December 8, 2017, VA issued a Final Rule amending 38 C.F.R. § 3.321(b)(1), effective January 8, 2018, to clarify that an extraschedular rating may not be based on the combined effect of multiple service-connected disabilities. See Final Rule, 82 Fed.Reg. 57830, 57,835 (Dec. 8, 2017); see also proposed revision 81 Fed.Reg. 23228, 23232 (Apr. 20, 2016). This revision is applicable to all applications for benefits that are received by VA on or after January 8, 2018, or that are pending before VA, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. Thus, only the service-connected leiomyosarcoma will be considered for potential extraschedular evaluation. Caution must be taken not to conflate the criteria in 38 C.F.R. § 3.321(b)(1) with the criteria for a total disability rating based on individual unemployability (TDIU) in 38 C.F.R. § 4.16 (b). "[T]he effect of a service-connected disability [is] measured differently for purposes of extra-schedular consideration under 38 C.F.R. § 3.321 (b)(1) [than] for purposes of a TDIU [rating] under 38 C.F.R. § 4.16." Kellar v. Brown, 6 Vet. App. 157, 162 (1994). While the former requires marked interference with employment, the latter requires evidence of unemployability. Id.; see also Thun v. Peake, 22 Vet. App. at 117 (extraschedular consideration under § 3.321 may be warranted for disability that presents a loss of earning capacity that is less severe than total unemployability). Pursuant to the September 2017 and October 2020 Board remands, an advisory opinion was submitted for extraschedular consideration in January 2021 and the Director of Compensation Service noted that the Veteran was service connected for leiomyosarcoma, and was also service connected for secondary conditions from the treatment of the condition including psoriasis and eczema, painful scars, abdominal muscle impairment, abdominal scar, right lateral mid-thigh scar, radiation burn scar to the posterior trunk, left lateral mid-thigh scar, right upper arm deltoid scar, and mid abdominal scar. The Director then noted that the Veteran was diagnosed with leiomyosarcoma in 2003 and, following treatment, a February 2004 PET scan revealed no active malignant or metastatic disease. The evidence did not show recurrence of leiomyosarcoma requiring treatment supporting a 100 percent evaluation for active cancer and the secondary residuals of the tumor were being considered on the residual impairment of function for the body systems impaired. The Director concluded that there were no unusual or exceptional disability pattern related to leiomyosarcoma itself that had been demonstrated that would render application of the regular rating criteria as impractical. Thus, entitlement to an extraschedular rating was denied. Initially, the Board notes that the determination of the VA Director of Compensation was self-described as an advisory opinion. However, it is, in actuality, an adjudication and is not medical evidence which, in itself, the Board can rely upon in reaching a determination. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015) and Kuppamala v. McDonald, 27 Vet. App. 447, 455-56 (2015). However, the Director's opinion is not a final determination on the matter. Rather, the Board must review all the evidence in rendering a final determination regarding whether the appellant is entitled to an extraschedular rating. As the issue of extraschedular consideration for the Veteran's leiomyosarcoma was adjudicated in the first instance by the Director in January 2021, the Board is now free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). There is no restriction on the Board's ability to review the adjudication of an extraschedular rating once the Director determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). See also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) ("[T]he Director's decision is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence." The Board conducts a de novo review of the Director's decision.) More recently, however, on March 14, 2019, the Veterans Court (CAVC) also issued Ray v. Wilkie, 31 Vet. App. 58 (2019) which, in part, addressed the effect of the Board's referral of a case for extraschedular consideration when the Board later reviews the Director's decision not to award an extraschedular disability rating. The Court held that the Board's determination to refer a case for extra-schedular consideration is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies the claim after referral, the Board "must provide adequate reasons or bases for deviating from its earlier referral decision." Even more recently, on May 28, 2020, the CAVC issued Smiddy v. Wilkie, 32 Vet. App. 350 (2020). In Smiddy, the Court extended its holding in Ray regarding the initial decision of whether to refer the issue of an extraschedular TDIU under 38 C.F.R. § 4.16(b) to the Director of Compensation Services to the initial decision of whether to refer the issue of an extraschedular rating decision under 38 C.F.R. § 3.321(b)(1) to the Director. In other words, when the Board denies entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b), it must provide adequate reasons and bases for any factual determination that deviates from its earlier decision to remand the claim for referral to the Director of Compensation Service. Here, however, the initial September 2017 Board remand did not make factual findings when referring this appeal to the Director. Consideration of an extraschedular rating, after a determination by the Director in the first instance, requires consideration of the issue of 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). Concerning the first element, comparison of the Veteran's symptoms and associated functional impairment does not show that the rating criteria are inadequate to describe his disability picture. The Veteran's leiomyosarcoma is rated on residuals after being active, and the Veteran has described impairments from his surgeries, radiation burns, scarring and allergies. As a result, the Veteran was granted service connection for secondary conditions from the treatment of the condition including psoriasis and eczema under Diagnostic Code 7806-7816, painful scars under Diagnostic Code 7804, abdominal muscle impairment under 5319, abdominal scar under 7805, right lateral mid-thigh scar under Diagnostic Code 7801, radiation burn scar to the posterior trunk under Diagnostic Code 7801, left lateral mid-thigh scar under Diagnostic Code 7802, right upper arm deltoid scar under 7802, and mid abdominal scar under 7802. In addition, he has been service-connected for genitourinary problems as secondary to this disability, which are currently in receipt of a separate 40 percent evaluation. The record shows that the Veteran has complaints of radiation burns on his buttocks that periodically became sore, cracked and bled. Symptoms of painful or unstable scaring, however, are expressly listed under Diagnostic Code 7804 as relevant considerations, and superficial and deep burn scaring are directly contemplated by Diagnostic Codes 7801 and 7802. There is also psoriasis of the mid-abdominal area and eczema of the bilateral upper and lower extremities, anterior and posterior extremities, and anterior and posterior trunk that are residuals of the radiation treatment, but Diagnostic Codes 7806 and 7816 directly contemplate the functional impairment associated with more than 40 percent of the exposed areas affected. The Veteran's symptoms of pain in the abdominal area due to multiple surgeries are not listed expressly under Diagnostic Code 5319 but are contemplated under the assigned 30 percent rating for a moderately severe disability. In summary, the schedular criteria for muscle injury disabilities contemplate a wide variety of manifestations of functional loss. The Veteran's stated symptoms, including genitourinary dysfunction, pain and scaring, are all contemplated by the schedular rating criteria, as Diagnostic Code 5329 specifically instructs to rate on residual impairment of function if there has been no local recurrence or metastasis of sarcoma. Because the Rating Schedule was purposely designed to compensate for such functional effects of his disability in all spheres of his daily life, including at work and at home, and given the variety of ways in which the Rating Schedule contemplates functional loss for muscle injury disabilities, the Board concludes that the schedular rating criteria reasonably describe his disability picture and that an extraschedular rating is not warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.