Citation Nr: 21032096 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 08-37 327 DATE: May 25, 2021 ORDER Entitlement to a separate extraschedular rating of 10 percent based on painful and unstable scars for foot ulcers is granted. FINDING OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, his service-connected foot ulcers symptoms, to include persistently present unhealed wounds, have been shown to be so exception or unusual with such related factors as marked interference with employment or repeated hospitalization, as to warrant the assignment of a higher rating on an extraschedular basis. 2. Throughout the period on appeal, the Veteran's foot ulcers resulted in an average impairment in earning capacity significant enough to warrant a separate additional 10 percent extraschedular rating based on painful and unstable scars. CONCLUSION OF LAW The criteria for a separate 10 percent rating for the Veteran's service-connected foot ulcers on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.14.14, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1957 to June 1960 and in the United States Air Force from December 1962 to December 1966, to include service in the Republic of Vietnam. Regrettably, the Veteran died in July 2013. The appellant is his surviving spouse. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Waco, Texas. This case was most recently before the Board in May 2017, at which time the Board denied an increased initial rating for foot ulcers on a schedular basis and remanded the claim for entitlement to an initial rating for foot ulcers on an extraschedular basis to the Agency of Original Jurisdiction (AOJ) for further development. The case has now been returned to the Board for appellate action. As noted in the May 2017 Board decision, during the pendency of the appeal, in an October 2008 rating decision, the RO increased the evaluation of the Veteran's foot ulcers from noncompensable to 10 percent disabling effective December 11, 2006. As the increase did not represent the maximum ratings available for the foot ulcers, the appellant's claim for a higher rating remained in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating for Foot Ulcers on an Extraschedular Basis The appellant contends that the Veteran was entitled to an extraschedular rating for his service-connected foot ulcers. The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Specifically, the Veteran contended that his rating for foot ulcers was too low since the foot ulcers created its own set of ongoing and continuing conditions and complications. See VA Form 9, November 12, 2008. Additionally, the appellant's representative argues that the RO did not consider all available diagnostic codes available for the evaluation of his foot ulcers. See VA 646 Statement of Accredited Representative in Appealed Case, June 17, 2016. Moreover, the appellant's representative argues that the Veteran's foot ulcers were painful, he was not able to ambulate well due to pain and swelling, and that the condition was not adequately assessed by VA and warranted an increased rating. See Appellate Brief, February 23, 2021. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). Pursuant to 38 C.F.R § 3.321(b)(1), the Under Secretary for Benefits or the Director of the Compensation Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). The determination of whether a Veteran is entitled to an extraschedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); see also 38 C.F.R. § 3.321(b)(1). 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. In this regard, the Board must compare the level of severity and symptomatology of a veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. In such cases, no referral is required. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is, therefore, inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." If the first two questions are answered in the affirmative, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Thun, 22 Vet. App. 115 -16. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event. It may find that the preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When the Board finds that an extraschedular rating may be warranted based on the above factors, it cannot grant an extraschedular rating in the first instance. Anderson v. Shinseki, 23 Vet. App. 423, 428-429 (2009). Rather, it must remand the claim to the Agency of Original Jurisdiction (AOJ) for referral to the Director of Compensation Service (Director). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board did so in this case in November 2020, discussed herein. With respect to the first prong in Thun, the evidence in this case does show such an exceptional or unusual disability picture that the available schedular ratings for service-connected foot ulcers are inadequate. Notably, in the May 2017 Board decision and remand, the Board found that the rating criteria did not reasonably contemplate the Veteran's disability and found that his level of symptomology during the period on appeal was exceptional. See May 2017 Board decision. In this regard, the May 2017 Board remand found that the Veteran was not prescribed immunosuppressant medication for his foot ulcers; however, he was treated with significant medications, hospitalized to treat the ulcers, suffered from gangrene, and suffered from the ulcers for a protracted period. Id. As such, the Board is bound by its previous findings that the Veteran's foot ulcers did show an exceptional or unusual disability picture and that the available schedular ratings for service-connected foot ulcers were inadequate. The Board additionally notes that the previous decision in May 2017 provided an in-depth listing of the medical evidence related to the Veteran's foot ulcers at that time. Rather than repeat such listing herein, the Board incorporates it by reference. As noted above, and pursuant to the May 2017 Board remand, the Veteran's claims file was referred to the Director of Compensation Service for consideration of an extraschedular rating for the Veteran's service-connected foot ulcers. In November 2020, the Director of Compensation Service issued an advisory opinion and denied the claim. This opinion noted that the Veteran had a history of treatment records showing a history of skin ulcerations and numerous skin ulcerations shown beginning in 2006. The opinion noted that regular wound care for the skin ulcers was provided by Methodist Hospital and VA Medical Centers and that the skin ulcers were treated with topical medications and antiseptic wound dressings. The opinion also noted the May 2017 Board decision finding that at no time did the foot ulcers require prescribed systemic immunosuppressive therapy for the control of his foot ulcers, which would have supported a higher schedular evaluation and that the skin ulcers to the feet would not have been better evaluated as a foot condition or as unstable scars. Further, the opinion noted that the history of treatment for the skin ulcers to the feet suggested a correlation with the history of treatment for peripheral vascular disease and worsening symptoms of the peripheral vascular disease resulted in increased skin problems in the feet. Therefore, the Director of Compensation Service found that the record did not support an extraschedular evaluation for the skin ulcers of the feet since the cause of the condition being treated was not exclusively related to the service-connected skin condition or the diabetic condition alone, was a condition worsened by the nonservice related peripheral vascular disease, and the medical evidence did not support a higher evaluation on an extraschedular basis. Specifically, the Director of Compensation Service found that the medical evidence did not demonstrate an unusual or exceptional disability pattern that would render application of the regular rating criteria as impractical. The Director's decision is not evidence but rather a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Based on the foregoing, the Board finds that the symptoms related to the Veteran's service-connected foot ulcers manifested in skin ulcers that required treatment on a regular basis, caused pain and swelling, and interfered with ambulation. Additionally, the Veteran's symptoms included gangrene, hospitalization, and persistent and unhealed wounds on the feet. A review of all of the schedular diagnostic code ratings currently assigned to the foot ulcers indicate that these symptoms are not adequately addressed by the schedular rating criteria as found by the previous May 2017 Board decision. The Veteran was rated under Diagnostic Code 7919-7826 as 10 percent disabling for his foot ulcers. 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 rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.118. Under Diagnostic Code 7826, a 10 percent rating is warranted for at least one of the following: recurrent documented vasculitic episodes occurring one to three times over the past 12-month period, and requiring intermittent systemic immunosuppressive therapy for control; or without recurrent documented vasculitic episodes but requiring continuous systemic medication for control. 38 C.F.R. § 4.118. A 30 percent rating is warranted for all of the following: recurrent documented vasculitic episodes occurring four or more times over the past 12-month period; and requiring intermittent systemic immunosuppressive therapy for control. Id. As such, the Veteran's symptoms of foot ulcers resulting in gangrene, hospitalization, and persistent and unhealed open wounds, skin ulcers, treatment, pain, swelling, and interference with ambulation are not all contemplated by this diagnostic code. Notably, the Veteran's symptoms of gangrene, hospitalization, and persistent and unhealed open wounds on the feet are not contemplated by this diagnostic code. As found in the May 2017 Board decision and noted above, the Board finds that these symptoms are atypical of foot ulcers and represent an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. The majority of the Veteran's symptoms have been primarily contemplated by Diagnostic Code 7826. Nonetheless, the Veteran's disability resulted in additional impact on his ability to obtain and maintain employment. Notably, the Veteran received consistent wound treatment for ulcer of the feet, to include hyperbaric wound therapy, debridement, ointments, Apligraf, Oasis, Prisma, Dermagraf, Silvadene, cleansers, and without systemic immunosuppressive therapy for control. Additional treatment records consistently showed persistent open ulcers of the feet with an ulcer that had existed for two years or more, gangrene with osteomyelitis on his left side and gangrene on several occasions spanning nearly a year. The Board acknowledges that it is without set guidance as to any standard for assigning an extraschedular rating for a foot ulcer disability that has resulted in interference with employment but which has not resulted in a maximum schedular rating under the Diagnostic Code. As stated above, per the holding in Kuppamala the standard for assessing an appropriate extraschedular rating, if any, is whether there was "average impairment in earning capacity" significant enough to warrant an extraschedular rating. Kuppamala, 27 Vet. App. at 453-4. However, the Board also acknowledges that it is for the very reason of impact on earning capacity that service connection was established and compensable ratings assigned under the schedular criteria in the first place. 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"). In this case, although the various examinations have not shown the Veteran to meet the schedular criteria beyond a 10 percent rating, it is clear that his disability results in interference with employment due to persistently present foot ulcers with gangrene, numerous treatments, difficulty ambulating and frequent hospital visits for treatment of his foot ulcers. However, to the degree that employment has been affected by his skin ulcers, treatment, pain, swelling, and interference with ambulation are contemplated by the Diagnostic Code. If they were, in fact, more severe, then a higher schedular rating would have been warranted. In this regard, the Board finds that the majority of these symptoms are contemplated by Diagnostic Code 7826 even though the rating criteria does not specifically reference such symptoms. The fact that a particular symptom or manifestation may not be mentioned in the rating criteria does not in itself show an exceptional or unusual disability picture. In this regard, all schedular criteria are meant to consider the average impairment in earning capacity resulting from service-connected disabilities. See 38 C.F.R. § 4.1. The basis of the schedular criteria is one's ability to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Viewed in this light, although a particular diagnostic code may provide for evaluations of a disability in terms of objective clinical data rather than in terms of symptoms, as is the case with dermatitis and eczema, the purpose of the schedular ratings is to provide compensation for the symptoms and functional impairment caused by the disability in question, particularly with regard to how they affect earning capacity. See 38 C.F.R. §§ 4.1, 4.10, 4.21. However, the Board finds that the weight of the evidence is at least evenly balanced to support a finding that the Veteran's foot ulcers manifested in symptomatology that is not contemplated by the schedular criteria. In this regard, the Board notes that in order to obtain an extraschedular rating under § 3.321, the Veteran need not show he is totally unemployable; instead, he need only demonstrate marked interference with employment. The Board finds that the Veteran's symptoms of gangrene, persistent and unhealed open wounds on the feet, and resulting frequent hospital visits are not adequately contemplated by Diagnostic Code 7826, and such symptoms resulted in marked interference with employment. Specifically, the Board finds that throughout the rating period on appeal, a separate 10 percent extraschedular rating is warranted for the Veteran's gangrene and persistently unhealed and opened wounds on the feet. In this regard, the Board finds that these symptoms most closely approximate a 10 percent rating under Diagnostic Code 7804 for one or two scars that are painful and unstable. See 38 C.F.R. § 4.118, Diagnostic Code 7804. Notably, the Veteran had one or two foot ulcers that were consistently present and unhealed on his right foot and at times present on his left foot, and caused pain. In addition, the presence of unhealed and open wounds demonstrates that the foot ulcers were unstable. The Board acknowledges that it is without diagnostic guidance with regard to assigning a rating for the persistently present open wounds on the Veteran's feet; however, such symptoms are not clearly considered under the current rating criteria under Diagnostic Code 7826. Thus, the schedular ratings are inadequate in this regard. However, the Board finds that the Veteran's symptoms, that are not adequately contemplated by Diagnostic Code 7826, most closely approximate an additional 10 percent rating on an extraschedular basis under Diagnostic Code 7804 based on one or two painful and unstable scars. Based on the aforementioned finding that the Veteran's service-connected foot ulcers warrant an extraschedular rating, the Board further notes the Director's November 2020 opinion denying extraschedular consideration. Pursuant to the Court's holding in Kuppamala, the Board is empowered to review decisions by the Director regarding awards and extraschedular ratings under 38 C.F.R. § 3.321 (b)(1). Kuppamala, 27 Vet. App. at 455-56. The Court further held that the Director's decision regarding assignment of an extraschedular rating is one of fact, not of opinion, discretion, or policy, and as such, it is reviewable by the Board de novo. See id. at 457. As such, the Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating "in the first instance." Floyd v. Brown, 9 Vet. App. 88, 9495 (1996). Here, that is not the case. The weight of the evidence demonstrates that the Veteran's foot ulcers manifested in symptomatology that is not contemplated by the schedular criteria, to include frequent hospital visits for treatment of his foot ulcers, gangrene, and persistently present open wounds on his feet. Further, the evidence is at least in equipoise as to whether the Veteran's foot ulcers caused marked interference with employment. In light of the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board concludes that the schedular criteria are not adequate to rate his service-connected foot ulcers, which resulted in marked interference with employment. Accordingly, to accord justice to the Veteran, the Board finds that entitlement to a separate extraschedular rating of 10 percent based on painful and unstable scars for foot ulcers is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.