Webb v. McDonough, Case Number 2022-1243, decided June 29, 2023 was a case before the Federal Circuit and concerns how a condition not listed in the diagnostic code can be rated analogous to a listed condition.
The VA’s diagnostic codes are extensive, but it is possible a condition does not clearly fall under on one of the delineated codes. VA regulations, specifically 38 CFR 4.20 acknowledges this possibility and states: “When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.”
The Court explained: “In other words, this regulation provides that a veteran having an “unlisted” condition, i.e., one that is not included on the Schedule, can be rated analogously to—and given the associated disability rating of—a listed disease or injury, provided that the affected functions, anatomical location, and symptomatology of the veteran’s condition are “closely analogous” to those of the listed disease or injury.” Id. at *3.
It is well accepted law that when considering an analogous rating, the VA should take into consideration three factors when determining which listed rating is most closely analogous: “(1) whether the ‘functions affected’ by ailments are analogous; (2) whether the ‘anatomical localization’ of the ailments is analogous; and (3) whether the ‘symptomatology’ of the ailments is analogous.” Id. at *3.
In this case, the veteran developed service connected prostate cancer, the treatment for which caused erectile dysfunction (ED). After the veteran reopened an earlier claim requesting disability benefits for his ED, the VA issued a decision assigning him a noncompensable (i.e., zero percent) rating for his disability. At that time, the Schedule did not include a diagnostic code for ED. See 38 C.F.R. § 4.115b (2015). As a result, the RO rated the disability by analogy to diagnostic code (DC) 7522, which provides for a 20 percent disability rating for “[p]enis, deformity, with loss of erectile power.” IWith little discussion, the RO determined that his particular disability entitled him only to a noncompensable rating. The Board found DC 7522 required a deformity and since the veteran could not show an actual deformity, the Board determined the veteran was not entitled to a higher rating. This decision was affirmed by the Veterans Court.
The Federal Circuit noted the Veterans Court did not address the three factors already established in the law and concluded:
“that the Veterans Court erred by requiring Mr. Webb, to be eligible for benefits, to show that his unlisted condition identically matched the criteria of the listed condition to which his condition was rated by analogy. In doing so, the Veterans Court imposed a requirement not stated in § 4.20, the sole regulation governing rating by analogy. We hold that, when rating by analogy under § 4.20, the VA must adhere to the requirements of that regulation. The listed disease or injury to which a veteran’s unlisted condition is being rated by analogy must be only “closely related,” not identical, to the unlisted condition. That regulation provides guidance for determining whether a listed condition is “closely related” to the unlisted condition: it is one “in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous” to the unlisted condition. 38 C.F.R. § 4.20; see also Lendenmann, 3 Vet. App. at 350–51. Further, once the VA has concluded that a listed disease or injury is “closely analogous” to a veteran’s unlisted condition, we see no source of law directing the VA to withhold the rating based on the qualifying criteria associated with that listed disease or injury’s diagnostic code.”
Id. at *6.
The Court further explained “it would be nonsensical to require a veteran’s unlisted disability to precisely meet the criteria for a listed disease or injury’s diagnostic code. After all, if a veteran’s condition did precisely meet the requirements of a listed condition, that condition could simply be rated under that listed condition’s diagnostic code; there would be no need to rate by analogy.” Id. at *7.
The decision is a sensible explanation of a rating by analogy that points out that a rating by analogy is precisely that and does not require the elements of each symptom to match up perfectly.
Decision by Judge Stoll and joined by Judges Taranto and Chen.
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