Citation Nr: 0702579 Decision Date: 01/29/07 Archive Date: 02/06/07 DOCKET NO. 03-36 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability evaluation in excess of 10 percent for the veteran's right lower extremity deep venous thrombosis for the period prior to October 14, 2002. 2. Entitlement to an initial disability evaluation in excess of 20 percent for the veteran's right lower extremity deep venous thrombosis for the period on and after October 14, 2002. 3. Entitlement to a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from March 1953 to March 1955. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Nashville, Tennessee, Regional Office (RO) beginning in October 2002 which, in pertinent part, granted compensation under the provisions of 38 U.S.C.A. § 1151 for right lower extremity deep venous thrombosis (DVT) and assigned a 10 percent initial evaluation for that disability. In April 2003, the RO increased the evaluation for the veteran's right lower extremity DVT from 10 percent to 20 percent; effective as of October 14, 2002, and denied a claim for TDIU. In March 2005, the Board Remanded the appeal. While the appeal was in Remand status, the RO granted claims of entitlement to service connection for tinnitus and bilateral hearing loss. The veteran has not disagreed with or appealed any aspect of those grants of service connection, and no issue regarding tinnitus or hearing loss disability is before the Board for appellate review at this time. FINDINGS OF FACT 1. Prior to October 14, 2002, the veteran's right lower extremity DVT was manifested by a thrombogenic foci on Doppler ultrasound examination, and the veteran was required to take Coumadin. 2. From October 14, 2002, the veteran's right lower extremity DVT has been manifested by right leg swelling, pain, and the veteran was required to take Coumadin, but use of Coumadin was discontinued in December 2004 after a hospitalization for bleeding diverticulitis, as the bleeding was thought to be a side effect of Coumadin. 3. The VA examination of April 2003 revealed that the veteran had eczema on the right thigh, the area of the DVT. 4. The veteran, who completed the ninth grade, had employment experience in construction and as a steamfitter and pipefitter before he incurred a back injury in 1977 while working as a pipefitter, but he has had no significant employment experience since that time. 5. The veteran's service-connected disabilities include hearing loss disability, evaluated as 20 percent disabling, tinnitus, evaluated as 10 percent disabling, and the veteran has been awarded benefits under 38 U.S.C.A. § 1151 for DVT, right lower extremity, evaluated as 20 percent disabling prior to April 9, 2003, and 40 percent disabling thereafter, for a combined disability evaluation of 60 percent from April 9, 2003. 6. The veteran is independent in activities of daily living. 7. The preponderance of the medical evidence and opinions of record shows that the veteran's three compensated disabilities, which entitle him to a combined 40 percent evaluation, do not preclude him from performing the mental and physical acts required for employment, although his employment opportunities would be limited. CONCLUSIONS OF LAW 1. The criteria for an increased initial disability evaluation to 20 percent for the veteran's right lower extremity deep venous thrombosis for the period prior to October 14, 2002, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7121 (2006). 2. The criteria for an increased initial disability evaluation to 40 percent for the veteran's right lower extremity deep venous thrombosis for the period on and after April 9, 2003, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7121 (2006). 3. The criteria for entitlement to TDIU are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.159, 3.321, 3.341, 4.16, 4.19, 4.25 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that his right leg DVT is more disabling than the assigned staged initial evaluations reflect, in part, because of the side effects of Coumadin, and further contends that his service-connected disabilities render him unemployable. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2005), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2006), provides that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. These provisions also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA must also request that the claimant provide any evidence in the claimant's possession that pertains to the claim. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. In this case, following the veteran's submission of his claims for service connection, the RO issued letters in July 2000 and July 2001 which addressed the issue of service connection for blood clot in leg. The United States Court of Veterans Appeals (Court) has stated that the statutory scheme of the VCAA contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose. See Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also, e.g., Sutton v. Nicholson, 20 Vet. App. 419, 426 (2006); Locklear v. Nicholson, 20 Vet. App. 410, 415 (2000). In this case, the veteran's claim for benefits under 38 U.S.C.A. § 1151 for a blood clot, right leg, were granted, and the appeal before the Board concerns the veteran's disagreement with the initial evaluation for that disability following the grant of benefits. As to the evaluations assigned for disability due to DVT, the requirements of the VCAA have been met. Following the Board's March 2005 Remand, the Appeals Management Center (AMC) issued a March 2005 letter which, in pertinent part, advised the veteran of the criteria for an increased initial evaluation for his blood clot disability and advised the veteran of the criteria for TDIU. This letter informed the appellant of the actions VA would take to assist him to develop the claims, and advised the veteran of the evidence required to substantiate the claims, including notice to the veteran generally of the criteria for service connection. The AMC advised the veteran to tell VA about any additional evidence the veteran wanted VA to obtain, and advised the veteran to submit evidence on his own behalf, including such evidence as statements from individuals, and advised the veteran to submit any evidence he had. This notice was sufficient to advise the veteran to submit evidence in his possession. The AMC advised the veteran of the evidence that VA would obtain and of the veteran's responsibility to identify any additional evidence he wanted VA to obtain. This letter advised the veteran of each element of notice described in Pelegrini. Each issue addressed in this decision was thereafter readjudicated in August 2006, so the notice provided meets the requirements set forth in Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Not only has the veteran been provided with appropriate notice, but he has been every opportunity to submit evidence and argument in support of his claim and afforded the opportunity to develop medical evidence to support his claims through VA examinations. In addition, a January 1990 letter from Charles E. Goodman, Jr., M.D., addressed to a Social Security Administration (SSA) Administrative Law Judge discussing the veteran's disability picture was obtained, as directed in the Board's March 2005 Remand. The evidence considered by the SSA in granting or denying the veteran's claim for benefits was also obtained, as directed by the Board's March 2005 Remand. Additional documentation of the veteran's Coumadin therapy and associated follow up treatment for his deep venous thrombosis was also obtained, to the extent possible, although the veteran did not identify the private physician from whom he was receiving treatment for that disability after January 2003. Private clinical records prior to January 2003 are of record. However, the veteran was afforded the opportunity to identify the private provider who treated his DVT after January 2003, but did not do so. In light of the foregoing, the Board finds that VA has developed all relevant facts to the extent possible; no further assistance to the veteran in developing the facts pertinent to the issue of increased ratings is required to comply with the duty to assist under the VCAA. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Based upon the above, the Board finds that VA has done everything reasonably possible to assist the veteran. A remand or further development of these claims would serve no useful purpose. VA has satisfied its duties to inform and assist the veteran in this case. Also, VA's efforts have complied with the instructions contained in the January 2004 Remand from the Board. See Stegall v. West, 11 Vet. App. 268 (1998). Further development and further expending of VA's resources is not warranted. 1. Claim for initial evaluation in excess of 10 percent for right leg DVT prior to October 14, 2002 September 2000 to December 2000 VA outpatient clinical records are devoid of evidence that the veteran sought treatment or evaluation or complained of symptoms of right lower extremity DVT, although these records do reflect that continued anticoagulant therapy with Coumadin was continued. In January 2001, the veteran reported that he was unable to walk much because of a blood clot. VA clinical records dated in May 2001 reflect that the veteran continued with his Coumadin therapy for chronic DVT and that his Coumadin levels were therapeutic. In December 2001, during VA hospitalization for another disorder, venous Doppler examination of the veteran's right lower extremity disclosed evidence of DVT in the right femoral vein and right superficial femoral vein proximally. The clot was well- organized. A thrombogenic foci suggested an old clot with some blood around it. There was no evidence of DVT in the right popliteal or posterior tibial veins or in the left lower extremity. June 2002 VA outpatient treatment records disclose no objective difference between the left and right lower extremities. July 2002 VA outpatient treatment notes reflect that the veteran had pitting edema of both lower extremities up to the shins. Private treatment records from TC, MD, dated from prior to the veteran's July 2000 claim for right lower extremity DVT through January 2003 disclose that the level of Coumadin in the veteran's blood was regularly checked, but there was no specific notation regarding swelling or pain prior to October 2002. By a letter received in October 2002, Dr. C. stated that the veteran had chronic right leg edema and pain due to a persistent right leg DVT. Diagnostic Code (DC) 7121 provides that post-phlebitic syndrome of any etiology is rated as 10 percent disabling for intermittent edema of an extremity or aching and fatigue in a leg after prolonged standing or walking, with symptoms relieved by elevation or compression hosiery. A 20 percent rating is assigned for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is assigned for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration; a 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is assigned for massive board-like edema, with constant pain at rest. 38 C.F.R. § 4.104, DC 7121. In this case, the veteran's physicians did not describe the symptoms of his DVT with specificity during the period from the filing of the veteran's claim in July 2000 until December 2001. The clinical records establish that the veteran's DVT was diagnosed in 1994. Thus, that disability was stabilized for several years, and the veteran had been taking Coumadin for some time when he submitted the claim in July 2000. However, in December 2001, during a hospitalization for another disorder, the veteran's physicians considered discontinuing the use of Coumadin, because the use of an anticoagulant has numerous side effects. Examination at that time disclosed that an organized clot remained present in a vein on the right thigh. The physician who stated in October 2002 that the veteran had pain and swelling of the right thigh due to DVT described those symptoms as chronic. Given that the veteran's DVT was stable both before and after the Doppler examination of the right thigh in December 2001, the evidence is at least in equipoise to warrant a finding that the veteran's DVT symptoms were stable, and did not change on October 14, 2002. This evidence warrants a 20 percent evaluation prior to October 14, 2002. The clinical records establish that no provider has indicated that the veteran had stasis pigmentation or eczema on the right thigh at any time prior to October 14, 2002. The preponderance of the evidence establishes that the veteran did not meet the criteria for a 40 percent evaluation (edema and either stasis pigmentation or eczema) prior to October 14, 2002. The evidence is not in equipoise to support an evaluation in excess of 20 percent during this period. 38 U.S.C.A. § 5107(b). The evidence is against an evaluation in excess of 20 percent, but does support an increased initial evaluation to 20 percent prior to October 14, 2002. 2. Claim for an initial evaluation in excess of 20 percent for right leg DVT from October 14, 2002 By a letter received in October 2002, the veteran's private treating physician, TC, MD, stated that the veteran had chronic right leg edema and pain due to a persistent right leg DVT. In an October 2002 statement, the veteran reiterated that there was constant swelling of his right leg, so that he was unable to walk very far or sit very long at a time. He reported that keeping the leg elevated did not relieve the swelling or the pain. He also noted that Coumadin had side effects. On VA examination conducted on April 9, 2003, the veteran reported increased tightness in the right thigh as compared to the left when walking or with prolonged standing. The tightness improved with rest. The veteran's gait was equal on both sides. He walked without a cane. There was 1+ pitting edema below both knees. The examiner noted that the veteran had an erythematous flaky rash on the right medical thigh. The examiner specifically stated that the veteran "has eczema only on the right medial thigh." The examiner who conducted an August 2005 VA examination noted that the veteran reported that the right lower extremity where the blood clot occurred would swell and cause pain if he was up on it long periods of time. The veteran estimated that he could be up on the right leg for about an hour before it began to hurt. The veteran reported that the pain and swelling was intermittent. In December 2005, a reviewer noted that the veteran was no longer taking Coumadin as part of the treatment of the chronic DVT after the veteran developed bleeding diverticulitis. The examiner noted that there was mild swelling in the right upper thigh and mild tenderness of the thigh to palpation, but there was no redness or skin breakdown. The examiner stated that private ultrasound confirmed that there was a small amount of clot in the right upper thigh, reported to be stable in size and location. The examiner concluded that exercise and exertion were not precluded by the disorder. The examiner concluded that there would be moderated effects on the veteran's ability to do chores, shopping, exercise, and recreation, but no effect on traveling, eating, bathing, dressing, or other self-care activities. DC 7121 provides that post-phlebitic syndrome warrants a 40 percent rating where there is persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is assigned for persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. The VA examination conducted on April 9, 2003 revealed eczema in the area of the known DVT. Although later examiners did not describe the presence of eczema, this VA examination report places the evidence at least in equipoise that the criteria for a 40 percent initial evaluation were met, beginning that date. However, the evidence clearly establishes that no ulceration has been present at any time. Thus, no evaluation in excess of 40 percent is warranted at any time during the pendency of the appeal. The preponderance of the evidence is against an evaluation in excess of 40 percent. 38 U.S.C.A. § 5107(b). An increased initial evaluation to 40 percent is warranted, but no higher evaluation may be granted. 3. Claim for TDIU Currently, the veteran has been granted service connection for two disabilities, bilateral hearing loss, evaluated as 20 percent disabling, and tinnitus, evaluated as 10 percent disabling, and has been granted compensation under 38 U.S.C.A. § 1151 for DVT, right lower extremity. His combined disability evaluation prior to April 9, 2003, is 40 percent, as combined under 38 C.F.R. § 4.25 (20 percent + 20 percent = 36 percent + 10 percent = 42 percent, rounded to 40 percent), and the combined evaluation is 60 percent (40 percent + 20 percent =52 percent + 10 percent = 56 percent, rounded to 60 percent) from that date. Total disability ratings for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). If there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Neither the veteran's non-service-connected disabilities, nor his advancing age may be used as a determining factor in the rating agency's judgment. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. The veteran does not meet the schedular criteria for an award of TDIU, prior to April 9, 2003, since he does not have a single disability which is rated at 40 percent, since the highest rating assigned to any of his service-connected disabilities is a 20 percent evaluation. He does not meet the schedular criteria after April 9, 2003, because the combined total evaluation for all of his disabilities remains less than 70 percent. 38 C.F.R. § 4.25. It is the established policy of VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). On VA examination conducted in April 2003, the veteran walked, with an equal gait on both sides, without a cane. He reported tightness and dull achiness on the right side with walking. He reported that he was not able to walk much. In a May 2003 statement, the veteran stated he was unable to work because there was no job he could do that would allow him to elevate his legs. VA examination conducted in January 2006 discloses that the veteran reported fluctuation in intensity of his tinnitus, with less tinnitus in the mornings and gradually worsening throughout the day. The veteran reported that he had to watch television at a very loud level and his family complained about this. He reported some difficulty with balance in specific movements. The examiner concluded that there was no evidence of peripheral vestibular disorder. December 2005 VA audiologic examination disclosed a 70- decibel hearing loss in the right ear and a 100 decibel hearing loss in the left ear, with 78 percent speech recognition score for the right ear and 70 percent for the left ear, without hearing aids. The report of December 2005 VA examination reflects that the examiner concluded that the veteran's right lower extremity DVT did not preclude exercise and exertion, but would moderately limit such activities as chores, shopping, exercise, sports, and recreation, but would have no effect on the veteran's ability to travel or perform such self-care activities as bathing, dressing, and feeding himself. The veteran's service-connected DVT has resulted in one hospitalization during the appeal period, in December 2004. His service-connected disabilities do not result in inability to care for himself, or other unusual disability factors. There is no evidence that his hearing loss disability, tinnitus, or right lower extremity DVT results in unusual or exceptional circumstances which would warrant referral for extraschedular consideration of a total disability rating based on the veteran's service-connected disabilities. The central inquiry in a claim for TDIU is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Evidence submitted as part of the veteran's claim for Social Security disability benefits discloses that the veteran completed the ninth grade. He worked from 1969 to 1977 as a pipefitter; prior to that time, the veteran apparently worked in various aspects of construction. The evidence reflects that the veteran ceased to work as a pipefitter following an injury on the job in 1977. He has apparently had no significant employment experience since that time. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough to warrant an award of TDIU. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet App. at 363. The findings that the veteran's DVT would moderately limit, but not preclude such activities as shopping and exercise, establishes that his service-connected disabilities would preclude certain types of employment, but would not preclude all types of employment. The veteran contends that he would be unable to find a job because there is no employment available which allows an individual to elevate a leg. However, there is no medical evidence that the veteran would need to elevate his leg continuously. The evidence establishes that the veteran would be limited to employment which required limited continuous walking, but the evidence clearly establishes that the veteran's right leg DVT does not preclude all walking. The veteran's need to elevate his right leg at least occasionally during the work day, and the veteran's limitations due to hearing loss, would certainly limit his actual employment opportunities, but the evidence is against a finding that the service-connected disabilities would preclude employment. The veteran also contends that he is unable to work because he must be careful not to injure himself, since he is taking Coumadin. During the course of this appeal, that medication was discontinued. However, the veteran remains limited to employment which not expose his right leg to injury. The veteran's DVT would preclude heavy manual labor, so the veteran could not return to his past significant employment experience in construction and pipefitting. However, as the veteran has not been employed in those capacities for more than 20 years, the finding that the veteran cannot returned to employment as a pipefitter is not sufficient to establish individual unemployability due to service-connected disabilities in this case. Rather, the evidence supports a finding that the veteran is capable of performing many physical and mental acts required by employment, even though, as the veteran contends, suitable employment opportunities might be quite limited. The Board finds that the December 2005 and January 2006 VA examination reports are unfavorable to the veteran's claim that his service-connected disabilities rendered him individually unemployable. Those examination reports establish only that the veteran's right leg disability and his hearing loss and tinnitus preclude some types of employment. Those examination reports but do not establish that the veteran is incapable of performing the mental and physical acts required by employment, solely as a result of his service-connected disabilities, even when his disability is assessed in the context of subjective factors such as his occupational background and level of education. Although it is clear that he would have difficulty obtaining and maintaining employment, consistent with the 60 percent combined disability evaluation in effect on and from April 9, 2003, there is no evidence that the impact on the veteran's employability is greater than that represented by the 60 percent evaluation assigned. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). For example, although the veteran's ability to walk is limited to short distances, he is able to walk unaided. Although the veteran must turn the volume on the television up loud, he is able to listen to and understand a television program. Thus, the evidence establishes that the service-connected disabilities would interfere with following instructions, with some modification in the volume of instructions; there is no evidence that the veteran's service-connected disabilities would interfere with written instructions, so long as those written instructions were provided at no higher than a 9th grade reading level. In particular, the evidence reflects that the veteran's service- connected disabilities do not preclude him from independently performing activities of daily living, which include work- like activities. The preponderance of the medical evidence is against a finding that the veteran's service-connected disabilities alone, without reference to his age or to other diagnosed medical disorders, render him individually unemployable. Since the preponderance of the evidence is against the claim for TDIU, the provisions of 38 U.S.C.A. § 5107(b) regarding resolution of reasonable doubt are not applicable to warrant a grant of TDIU. The claim must be denied. ORDER An initial disability evaluation increased from 10 percent to 20 percent prior to October 14, 2002, for the veteran's right lower extremity DVT, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. An initial disability evaluation increased from 20 percent to 40 percent on and from April 9, 2003, for the veteran's right lower extremity DVT, is granted, subject to law and regulations governing the effective date of an award of monetary compensation; the appeal is granted to this extent only. The appeal for TDIU is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs