Friday, December 2, 2011

Single Judge Application, Impermissible Diagnostic Code Changes, Murray v. Shinseki, 24Vet.App.420, 427 (2011)

The Court must also consider an issue not raised by Mr. Fobbs, that is, whether VA impermissibly disturbed Mr. Fobbs's 20% rating under DC 5202, which was protected pursuant to 38 C.F.R. § 3.951(b). See Patton v. West, 12 Vet.App. 272, 283 (1999) (Court's statutory directive under 38 U.S.C. § 7261 to "decide all relevant questions of law" allows it to raise issues sua sponte, particularly where substantial interests of justice are implicated). =================================== The Court must also consider an issue not raised by Mr. Fobbs, that is, whether VA impermissibly disturbed Mr. Fobbs's 20% rating under DC 5202, which was protected pursuant to 38 C.F.R. § 3.951(b). See Patton v. West, 12 Vet.App. 272, 283 (1999) (Court's statutory directive under 38 U.S.C. § 7261 to "decide all relevant questions of law" allows it to raise issues sua sponte, particularly where substantial interests of justice are implicated). "A disability which has been continuously rated at or above any evaluation of disability for 20 or more years . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud." 38 C.F.R. § 3.951(b) (2011). This Court has recently interpreted this protection to prohibit VA from changing DCs that have been continuous for 20 years, even if the change does not result in a decreased overall rating to the veteran, and even if the symptoms for which the veteran was originally compensated no longer exist. Murray v. Shinseki, 24Vet.App.420, 427 (2011). In Murray, the Court reversed a Board decision that continued the veteran's same overall rating, but adjusted the veteran's applicable DC from 5257 to 5260 and 5261. Id. The Court reasoned that "[b]y changing the [DCs] under which Mr. Murray was rated, the Board effectively found that Mr. Murray was no longer entitled to a disability rating under [DC] 5257. . . , thus, in essence reducing that disability rating and thus the disability compensation related to that [DC] to zero." Id. 3 Mr. Fobbs received a 20% disability rating under DC 5202 in October 1958. This rating, pursuant to 38 C.F.R. § 3.951(b), became protected and could not be reduced below 20% after October 1978. When VA determined that Mr. Fobbs no longer suffered dislocations, and adjusted his DC from 5202 to 5201, it impermissibly reduced his protected rating under DC 5202 to zero. The Court will therefore, in accordance with Murray and 38 C.F.R. § 3.951(b), reinstate Mr. Fobbs's 20% disability rating under DC 5202.” =============================== U.S. Court of Appeals for Veterans Claims ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-1839 CLAYTON FOBBS, APPELLANT,v.ERIC K. SHINSEKI,SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge.MEMORANDUM DECISIONNote: Pursuant to U.S. Vet. App. R. 30(a),this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Clayton Fobbs appeals pro se from a May 5, 2010, decision of the Board of Veterans' Appeals (Board) that (1) determined that VA's reduction in disability rating for degenerative osteoarthritis of the left shoulder joint from 10% to 0% under 38 C.F.R.§4.71(a),Diagnostic Code(DC) 5003 was appropriate; (2) denied a disability rating in excess of 30% for residuals of a left shoulder dislocation; (3) denied an earlier effective date prior to July 8, 2005, for the assignment of a 30% disability rating for residuals of a left shoulder dislocation; and (4) denied service connection for a low back disability. For the following reasons, the Court will reverse the Board's finding that Mr. Fobbs is not entitled to a disability rating in excess of 30% for residuals of a left shoulder dislocation and remand the matter for the Board to reinstate Mr. Fobbs's 20% rating under DC 5202. The Court will also affirm the Board's May 2010 determination that VA's reduction for degenerative osteoarthritis of the left shoulder joint from 10% to 0% under DC 5003 was appropriate.Mr. Fobbs had active service from June 1955 to June 1957. Record (R.) at 453. Mr. Fobbswas originally awarded a 20% disability rating for residuals of a left shoulder dislocation under DC5202 in October 1958. Mr. Fobbs was additionallygranted a 10% rating for arthritis under DC 5003in August 2003. A September 2005 VA joints examination showed that he no longer suffered fromrecurrent dislocations of the left shoulder, but suffered from a compensable degree of limitation ofmotion. R. at 624-31. In September 2006, the RO adjusted Mr. Fobbs's disability rating to 30%under DC 5201 because it concluded that DC 5202 was no longer the appropriate rating code.In the decision on appeal, the Board agreed that DC 5202 was no longer the appropriate rating code. R. at 21-22. The Board observed that because there was objective evidence of limited motion, DC 5201 was more applicable to Mr. Fobbs's condition. The Board explained that becauseDC 5202 did not pertain to limitation of motion, while Mr. Fobbs's left shoulder dislocation was rated under DC 5202, a separate 10% rating was warranted under DC 5003 for arthritis of the left shoulder. Id. The Board pointed out that because DC 5201 was based entirely on limitation of motion, a separate compensable rating under DC 5003 was not permitted. Id. This appeal ensued.The Court will address two issues. First, do the regulations allow Mr. Fobbs a disability rating under DC 5003 in addition to a rating under DC 5201? Second, the Court will address an issue not raised by Mr. Fobbs, whether VA impermissibly disturbed a disability rating protected under 38 C.F.R. § 3.951(b)? I. ANALYSIS In his brief, Mr. Fobbs argues that the Board erred when it reduced his 10% rating for degenerative osteoarthritis of the left shoulder joint to 0% under DC 5003. Appellant's Informal Br.at 3. He reasons that "[c]ommon knowledge should have prevented the lowering of my 10% award to 0%. No reasonable person can justify or deny the fact that a degenerative condition does not get better but only can worsen. This fact alone proves the lowering of my 10% award from 10% to 0%was improper." Appellant's Informal Br. at 4. Mr. Fobbs received a 10% disability rating under DC 5003 for arthritis of the left shoulder in August 2003. VA's rating schedule specifically instructs rating specialists to rate any limitation of motion that is the result of degenerative arthritis under the DC for the specific joint involved. See38 C.F.R. § 4.71a, DC 5003 (2011). DC 5003 rates degenerative arthritis on "the basis of limitation of motion under the appropriate [DCs] for the specific joint or joints involved." 38 C.F.R. § 4.71(a),DC 5003. The regulation specifies an additional disability for arthritis is available only when the joint condition is noncompensable under a DC that accounts for limitation of motion. Id.In adjusting Mr. Fobbs's disability evaluation, the Board noted:2[T]he 2005 VA examination did reveal that the Veteran suffered from a compensable degree of limitation of motion. As such, the applicable [DC] was changed to 5201,since there was objective evidence of limited motion that was 30[%] compensable. Once the Veteran was compensated for a compensable degree of limited motion, a separate 10[%] disability evaluation under [DC] 5003 was not permitted.R. at 21-22.The Board made the determination that Mr. Fobbs was entitled to a 30% disability rating for limitation of motion under DC 5201, instead of a 10% disability rating under DC 5003. The Board correctly noted that Mr. Fobbs is now compensated under DC 5201 for the same manifestation he was previously compensated for under DC 5003–limited range of motion.Because he is compensated under DC 5201 for limitation of motion, the regulations do not allow for an additional disability rating under 5003. Despite the required reduction from 10% to 0% under DC 5003, Mr.Fobbs's overall rating actually has been increased.The Court must also consider an issue not raised by Mr. Fobbs, that is, whether VA impermissibly disturbed Mr. Fobbs's 20% rating under DC 5202, which was protected pursuant to38 C.F.R. § 3.951(b). See Patton v. West, 12 Vet.App. 272, 283 (1999) (Court's statutory directive under 38 U.S.C. § 7261 to "decide all relevant questions of law" allows it to raise issues sua sponte,particularly where substantial interests of justice are implicated)."A disability which has been continuously rated at or above any evaluation of disability for20 or more years . . . will not be reduced to less than such evaluation except upon a showing that such rating was based on fraud." 38 C.F.R. § 3.951(b) (2011). This Court has recently interpreted this protection to prohibit VA from changing DCs that have been continuous for 20 years, even if the change does not result in a decreased overall rating to the veteran, and even if the symptoms for which the veteran was originally compensated no longer exist. Murray v. Shinseki, 24 Vet.App.420,427 (2011). In Murray , the Court reversed a Board decision that continued the veteran's same overall rating, but adjusted the veteran's applicable DC from 5257 to 5260 and 5261. Id. The Court reasoned that "[b]y changing the [DCs] under which Mr. Murray was rated, the Board effectively found that Mr. Murray was no longer entitled to a disability rating under [DC] 5257. . . , thus, in essence reducing that disability rating and thus the disability compensation related to that [DC] to zero." Id. 3 Mr. Fobbs received a 20% disability rating under DC 5202 in October 1958. This rating,pursuant to 38 C.F.R. § 3.951(b), became protected and could not be reduced below 20% after October 1978. When VA determined that Mr. Fobbs no longer suffered dislocations, and adjusted his DC from 5202 to 5201, it impermissibly reduced his protected rating under DC 5202 to zero.The Court will therefore, in accordance with Murray and 38 C.F.R. § 3.951(b), reinstate Mr. Fobbs's20% disability rating under DC 5202.Mr. Fobbs presents other underdeveloped arguments. However, because none of these arguments could result in a more favorable outcome to Mr. Fobbs, the Court will not address them further. Mahl v. Principi, 15 Vet.App. 37, 38 (2001) (per curiam order).II. CONCLUSION On consideration of the foregoing, the Court REVERSES the Board's May 5, 2010, denial of entitlement to a rating in excess of 30% for residuals of the left shoulder dislocation and REMANDS the matter for the Board to reinstate the 20% rating under DC 5202, as well as to continue Mr. Fobbs's 30% rating under DC 5201. The Court also AFFIRMS the Board's May 5,2010, determination that the reduction from 10% to 0% under DC 5003 was appropriate.DATED: November 23, 2011Copies to:Clayton Fobbs, Esq.VA General Counsel (027)4

Single Judge Application, Presumption of Soundness Satisfies Second Shedden Requirement, Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Maxson v. West, 12 Vet.App. 453, 460 (1999)

Excerpt from decision below: "A claim for service connection must generally be supported by evidence demonstrating "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is unclear from the examiner's report, and from the Board's reiteration, which element was regarded as unproven." ============================== "The presumption of soundness relates to the second Shedden requirement–the showing of in-service incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (application of presumption satisfies incurrence or aggravation element). A claimant must show that he or she suffered from a disease or injury while in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof. The Board made no finding whether the transient blindness is in any way related to the 5 congenital conditions noted on the 2004 entrance examination. As the Board acknowledged, the fact that one or more difficulties with vision were noted on the entrance examination does not mean that every vision problem that may have developed in service is attributable to a preexisting condition. See R. at 8 ("The [VA] examiner indicated that [the transient blindness] may not be congenital in nature, and may even be a symptom associated with explosions experienced by the Veteran during active service." R. at 8-9. Thus, the Court has no basis on which to conclude that the transient blindness was a preexisting condition noted on the entrance examination or that the in-service manifestation of transient blindness was not to be regarded as an in-service disease or injury." =============================================== ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 10-3209 THOMAS L. OTTO, II, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Thomas L. Otto, II, appeals through counsel from a June 15, 2010, Board of Veterans' Appeals (Board) decision that denied (1) service connection for a right eye disorder (2) a disability rating in excess of 30% for post-traumatic stress disorder (PTSD) prior to August 30, 2007, and in excess of 50% thereafter, and (3) a disability rating in excess of 30% for a skin disorder. The appellant expressly declined to challenge the Board's assignment of a 50% disability rating for PTSD after August 30, 2007, but appeals the decision in all other respects. For the following reasons, the Court will affirm in part and set aside in part the Board's June 2010 decision, and remand three matters for further proceedings consistent with this decision. The appellant had active duty from March 2003 to December 2003, from October 2004 to January 2006, and from February 2009 to April 2010. Among the decorations he received for this service are the Purple Heart and the Combat Action Badge. The parties are agreed that a physical conducted in connection with his 2004 deployment to the Persian Gulf noted that he had "scleral cornea[1] and microphtalmos,"2 both of which areregarded as congenital defects. Record (R.)at 768. The appellant has stated that he was in close proximity to three IED [ improvised explosive device] explosions on two separate occasions during service. See R. at 780. Neither the Board nor the Secretary raises any challenge to these statements. In June 2006 he submitted an application seeking service connection benefits for a right eye disorder and a skin condition. Later that same year he applied for service connection benefits for PTSD. A November 27, 2006, rating decision granted service connection for PTSD, initially rated as 30% disabling. A May15, 2008, ratingdecision granted serviceconnection for"recurrentnodular MRSA[3] folliculitis," initially rated as 30% disabling. R. at 138. I. ANALYSIS A. PTSD Rating In the decision here on appeal, the Board acknowledged that "VA treatment records dated after [a] November 2006 [VA] examination indicated that the Veteran's PTSD symptoms had intensified." R. at 12. The Board nevertheless chose August 30, 2007, the date on which the appellant was admitted to a VA hospital, as the effective date for the increased disability rating of 50%. The appellant argues that his PTSD symptoms did not suddenly worsen on admission to the VA hospital and that the Board's statement of reasons or bases for selecting the hospital admission date as the effective date was inadequate. The Secretary concedes that this portion of the Board decision "should be remanded for the Board to adequately address when Appellant's PTSD symptomatology increased." Secretary's Brief at 4. After reviewing the evidence of record, the Court agrees with the concession. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (Board must provide a statement of reasons or bases for its In an examination report dated July 3, 2006, a VA examiner explained that " the [appellant] was born blind (scleral cornea) during the first 16 months of life[,] which resolved spontaneously." R. at 768. 2 "Microphtalmos" is"a developmental defect causing moderate or severe reduction insize of the eye. Opacities of the cornea and lens, scarring of the retina and chroroid, and other abnormalities may also be present." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1161 (32d ed. 2012) [hereinafter DORLAND'S]. 3 1 "MRSA" is an acronym for "methicillin-resistant Staphlyococcus areus." DORLAND'S at 1184. 2 decision to enablean appellant to understand the precise basis for its decision and to facilitate review in this Court). Accordingly, the Court will set aside the Board's determination that the criteria for a 50% disability rating were met only after August 30, 2007, for a more rigorous examination and discussion of the record evidence in the period after November 2006. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2) (2011) (effective date of an award of increased compensation may be up to one year prior to receipt of an application for increased benefits). B. Right Eye Condition In his opening brief, the appellant argued that the Board's statement of reasons or bases for denying the right eye condition, which is difficulty in adjusting to darkness when coming indoors from bright light, was inadequate. He further argued that the Board ignored evidence that this condition is a symptom of traumatic brain Previous DocumentinjuryNext Hit (TBI), which should have led the Board to develop a claim for TBI. The Secretary responded that in so arguing the appellant expressly abandoned his claim for an eye disorder. He further pointed out that the appellant filed a claim for benefits for TBI after the Board issued its decision here on appeal, which claim has been denied but not yet appealed. He asserts that the Court thereforedoes not have jurisdiction to address anyarguments raisedin this case pertaining to the right eye condition. The claim presented to the Board in this case, however, was for "Right Eye Transient Blindness." R. at 808. Whether evidence of record indicating that this phenomenon is a symptom of TBI should have led the Board to develop a claim for TBI is an interesting but now irrelevant question. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). Regardless of whether the appellant ever obtains service connection for TBI, however, he is entitled to adjudication of his claim for the condition manifested by the symptom of "right eye transient blindness," including the potential effective date of that claim. The Board relied on the July 2006 VA medical examination report with respect to service connection of the transient blindness. After noting the appellant's involvement with two IED incidents, the examiner, stated: After careful review of the patient's claim file and the medical literature, it is my opinion that there is not sufficient information to answer if this [ problem with adaption to dark is] related to the patient's service in the Middle East. It is possible 3 that the patient has side effects siderosis (retained metals) although there is not evidence of any retained metal on examination today. R. at 769-70. After obtaining a computerized tomography (CT) scan, however, the examiner wrote an addendum in which he further opined: "The patient does not have any evidence of intraocular or periocular foreign bodies. Therefore, it is my opinion that the patient has no evidence of siderosis and it is less likely than not that the veteran's visual problem is related to his military service." R. at 770. The Board merely reiterated this report and concluded that the evidence preponderated against service connection because "no medical evidence of record . . . counters the [July] VA examiner's assertions." R. at 9. A claim for service connection must generally be supported by evidence demonstrating "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). It is unclear from the examiner's report, and from the Board's reiteration, which element was regarded as unproven. The Court may infer that the examiner regarded the retention of metal as the most likely in- service eye injury to account for the appellant's transient blindness. Having performed a test to eliminate that possibility, he leaped to the conclusion that there was no link to military service. There is no indication that the examiner considered injury to the portions of the brain that process visual information or any other possible injury or disease that could cause the condition. Thus, it is unclear that the examiner obtained sufficient facts to reach his principal conclusion. Moreover, it is unclear whether he thought there was no in-service injury or there was no etiological link to an in- service injury. To the extent the examiner believed there was no in-service injury, however, it is not clear that such a conclusion would be consistent with the evidence of record. In this case, there is evidence that the appellant's right eye transient blindness manifested in service. During the demobilization process in Kuwait, on December 17, 2005, it was noted that the appellant had experienced "[right] eye transient blindness," and the examiner noted that the "[s]oldier just now decides to inform his unit that he has been experiencing some blindness from dark areas to bright 4 areas. He has been a truck driver for the past 12 months in Kuwait and Iraq." R. at 886. Without medical evidence it is not clear whether this in-service manifestation of transient blindness was due to or constituted a disease or injury. Significantly, the examiner's discussion offered no etiological explanation for the condition, and did not indicate he was even aware that the condition first manifested in service. This left the Board with no medical basis to evaluate and explain the occurrence of the transient blindness in service. To the extent that the Board based its conclusion on a lack of an in- service injury the Board was required to consider the implications of the presumption of soundness. "Decisions of the Board shall be based on the entire record in the proceedings and upon consideration of all evidence and material of record and applicable provisions of law and regulation." 38 U.S.C. § 7104(a); see also Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991). "[E]very veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment." 38 U.S.C. § 1111; see also 38 C. F.R. § 3.304(b) (2011). Therefore, when no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound in every respect. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet.App. 225, 227 (1991). The burden then falls on VA to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner, 370 F.3d at 1096; Bagby, 1 Vet.App. at 227. The presumption of soundness relates to the second Shedden requirement–the showing of in-service incurrence or aggravation of a disease or injury. See Holton v. Shinseki, 557 F.3d 1362, 1367(Fed. Cir. 2009); see also Maxson v. West, 12 Vet.App. 453, 460 (1999) (application of presumption satisfies incurrence or aggravation element). A claimant must show that he or she suffered from a disease or injury while in service. Holton, 557 F.3d at 1367. Thereafter, except for conditions noted at induction, the presumption of soundness ordinarily operates to satisfy the second element without further proof. The Board made no finding whether the transient blindness is in any way related to the 5 congenital conditions noted on the 2004 entrance examination. As the Board acknowledged, the fact that one or more difficulties with vision were noted on the entrance examination does not mean that every vision problem that may have developed in service is attributable to a preexisting condition. See R. at 8 ("The [VA] examiner indicated that [the transient blindness] may not be congenital in nature, and may even be a symptom associated with explosions experienced by the Veteran during active service." R. at 8-9. Thus, the Court has no basis on which to conclude that the transient blindness was a preexisting condition noted on the entrance examination or that the in-service manifestation of transient blindness was not to be regarded as an in- service disease or injury. The Board must consider these issues on remand. To the extent that the examiner believed there was no nexus between the present transient blindness and anything that occurred in service–to include the in-service transient blindness– the examiner's reasoning is unsupported by medical reasoning. See Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 301, 304 (2008). Thus, the Board's statement of reasons or bases, which amounted to a reiteration of the VA examination report, was inadequate to evaluate the service connection question under the Shedden factors. Furthermore, the examination report does not provide a medical basis for the Board to evaluate the possibility of service connection by continuity of symptomatology. See 38 C.F.R. § 3.303(b)(2011). Continuity of symptomatology may establish serviceconnection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). "[S]ymptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet.App. at 496. In this case, the occurrence of transient blindness was noted in service. There is also postservice medical evidence of the same symptomatology. The VA examiner offered no opinion, much less any reasoned medical explanation, why there is no nexus between his present disability and the postservice symptoms of transient blindness. Indeed, the two phenomena seem to be identical. Thus, the Board had no medical evidence to assess continuity of symptomatologyand did 6 not even discuss it. For the foregoing reasons, the VA examiner's report was insufficient to support the Board's conclusions as to the right eye condition, rendering its statement of reasons or bases inadequate. The Court will therefore set aside its denial of service connection for the right eye condition and remand the matter for further development to support an adequate statement of reasons or bases. C. Skin Condition In the decision here on appeal, the Board explained that the appellant's skin condition was rated by analogy to dermatitis or eczema. See 38 C.F.R. § 4.118, Diagnostic Code (DC) 7899-7806 (2011). To obtain the next highest disability rating under DC 7806, the Board noted, the evidence would have to show that more than 40% of the entire body or more than 40% of exposed areas were affected. The Board referenced a December 2007 VA examination report indicating that less than 1% of the appellant's body was affected by lesions and an August 2008 VA examination report indicating that none of the exposed areas of the body were affected. See R. at 16. The appellant does not challenge the Board's evaluation of the schedular rating and the Court's review of the record suggests no error. Therefore, the Court will affirm the Board's assignment of a 30% disability rating under DC 7806. TheCourt is dissatisfied,however,with theBoard'sdiscussionofanextraschedulardisability rating for the condition. The purpose of extraschedular evaluation under § 3.321(b) is "[t]o accord justice . . . to the exceptional case where the schedular evaluations are found to be inadequate." 38 C.F.R. § 3.321(b)(1) (2011). "The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards." Id. Although the Board does not have authority to assign an extraschedular rating, it must determine whether to refer a case for extraschedular evaluation whenever the issue is raised, either explicitly by the claimant or by the evidence of record. See Thun v. Peake, 22 Vet.App. 111, 115 (2008). The Board's entire discussion of the matter was as follows: "Finally, the Board finds an extraschedular rating unwarranted here. Application of the regular schedular standards is found 7 practicable in this matter. Hence the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) for assignment of an extra-schedular evaluation." R. at 16 (citations omitted). TheCourt agrees with the appellantthattheforegoingdiscussion is inadequateasastatement of reasons or bases. The first question in consideration of referral for extraschedular rating is whether the schedular rating adequately contemplates the veteran's disability picture. See Thun, 22 Vet.App. at 115. "Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability [and] the established criteria found in the rating schedule for that disability." Id. The evidence of record indicates that the lesions from the appellant's MRSA folliculitis can reach softball size and appear on his thighs, buttocks, and groin. The appellant indicates that "these issues interfere with his abilityto work as a meter reader/custodian[,] which requirehim to walk long distances." R. at 248. The evidence further indicates that the appellant " has had many episodes of infected follicles" (R. at 255), including a hospital admission to treat a " golf-ball sized abscess" on the right upper thigh. R. at 256. On another occasion, the appellant was seen in the emergencyroom with a "large groin lesion that required incision and drainage." R. at 178. A VA examination report dated March 24, 2008, noted: "In the last year he [has] missed a total of [ one] month [of work] because of his folliculitis. In addition he has had to leave work [early on] 30-40 days . . . because lesions would crop up." R. at 180. As discussed above, DC 7806 assigns a schedular rating according to the percentage of body area covered by the skin condition, which suggests a cosmetic evaluation that would interefere with work only when the coverage becomes widespread. The Board does not explain how these rating factors reflect the type of localized lesions that interfere with basic walking and riding activities. Thesemanifestationsconstituteinterferencewith employment; whetherit risesto thelevelofmarked interference would be for the regional office to evaluate in the first instance. For the foregoing reasons, the Court concludes that the issue of extraschedular rating under 38 C.F.R. § 3.321(b) requires further scrutiny and discussion. The Court will therefore set aside the Board's finding with respect to extraschedular rating and remand for expanded treatment of that issue. 8 II. CONCLUSION On consideration of the foregoing, the Court AFFIRMS the Board's June 15, 2010, decision with respect to its assignment of a 50% disability rating for PTSD after August 30, 2007, and its assignment of a schedular disability rating of 30% for the appellant's service-connected MRSA folliculits; SETS ASIDE the Board's denial of service connection for a right eye condition, its assignment of August 30, 2007, as the effective date of an increase in disability for the appellant's PTSD, andits findingthattheappellant's casedid not warrantreferralforanextraschedulardisability rating; and REMANDS these matters for readjudication. On remand, the appellant will be free to submit additional evidence and argument as to his claims and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: November 30, 2011 Copies to: James G. Fausone, Esq. VA General Counsel (027) 9