Citation Nr: 1141925	
Decision Date: 11/10/11    Archive Date: 11/21/11

DOCKET NO.  09-11 816	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New York, New York


THE ISSUES

1.  Entitlement to service connection for venous insufficiency as secondary to the service-connected bilateral postphlebitic syndrome.

2.  Entitlement to an increased rating for right foot postphlebitic syndrome from December 28, 2003, to December 27, 2004, rated as 10 percent disabling.

3.  Entitlement to an increased rating for right foot postphlebitic syndrome from December 28, 2004, currently rated as 20 percent disabling.

4.  Entitlement to an increased rating for left foot postphlebitic syndrome from December 28, 2003, to December 27, 2004, rated as 10 percent disabling.

5.  Entitlement to an increased rating for left foot postphlebitic syndrome since December 28, 2004, currently rated as 20 percent disabling.

6.  Entitlement to an increased rating for uterine fibroids from December 28, 2003, to March 31, 2009, rated as 10 percent disabling.

7.  Entitlement to a rating in excess of 10 percent for left foot hallux limitus deformity.

8.  Entitlement to a combined rating for the service-connected disabilities in excess of 60 percent from December 28, 2004, to October 3, 2006.

9.  Entitlement to a combined rating for the service-connected disabilities in excess of 70 percent from October 4, 2006, to March 31, 2009.

10.  Entitlement to a combined rating in excess of 60 percent since April 1, 2009, for the service-connected disabilities.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

David T. Cherry, Counsel


INTRODUCTION

The Veteran served on active duty from February 1987 to April 1988. 

This case comes before the Board of Veterans' Appeals (the Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in New York, New York, and Togus, Maine.  The Veteran's claims file is currently under the jurisdiction of the RO in New York, New York.

The issues of whether an August 2007 rating decision contains clear and unmistakable evidence in assigning 20 percent disability ratings for right foot and left foot postphlebitic syndrome effective December 28, 2004; whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for left foot hammertoes secondary to the service-connected left foot hallux limitus deformity; and entitlement to service connection for flat feet, right foot hammertoes, a gastrointestinal disorder, and scoliosis have been raised by the record, but have not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over them, and they are referred to the RO for appropriate action.  

All of the issues except entitlement to service connection for venous insufficiency as secondary to the service-connected bilateral postphlebitic syndrome are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  In a March 2004 rating decision, the RO granted entitlement to service connection for a bilateral foot disability, diagnosed as bilateral lymphedema of both lower extremities, but the RO indicated in the decision that the disability had various diagnoses, to include venous insufficiency that was diagnosed by a January 2004 VA peripheral nerves examiner.

2.  In an August 2007 rating decision, the bilateral foot disability was reclassified as bilateral postphlebitic syndrome.

3.  The competent medical evidence shows that the bilateral foot disability has been variously diagnosed as lymphedema, chronic venous insufficiency, and postphlebitic syndrome.

4.  The competent medical evidence does not show that the Veteran has a current disability of the lower extremities for which service connection has not already been granted.


CONCLUSION OF LAW

Service connection for venous insufficiency as secondary to the service-connected bilateral postphlebitic syndrome is not warranted.  38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. § 4.14 (2011).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act
 
The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met.  There is no issue as to providing an appropriate application form or completeness of the application.  VA notified the Veteran in September 2005 and April 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  VA provided information addressing how disability evaluations and effective dates are assigned in April 2007 correspondence.  The claim was most recently readjudicated in a June 2011 supplemental statement of the case.  Thus, any timing error as to notice was cured and rendered nonprejudicial.  Pricket v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect).

There is no evidence that any VA error in notifying or assisting the Veteran reasonably affects the fairness of this adjudication.  VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim.  The RO obtained the appellant's service treatment records, VA treatment records, Social Security Administration records, and some private treatment records.  The claimant submitted complete copies of private treatment records from Advanced Dermatology for treatment on July 31, 2009.  The Veteran was also afforded several VA examinations.

The RO only adjudicated the issue of entitlement to service connection for venous insufficiency as secondary to the service-connected left foot disability.  The Veteran, however, is claiming that venous insufficiency as secondary to both service-connected foot disabilities.  See, e.g., September 2006 notice of disagreement.  The Board will consider the right-foot-disability secondary theory of entitlement in the first instance.  The appellant is not prejudiced by the Board's consideration of this theory of entitlement because the claimant has presented argument on it and it involves the same facts as the left-foot-disability secondary theory of entitlement.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Governing law and regulations

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. § 1131; 38 C.F.R. § 3.303.  Service connection may also be warranted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Degmetich v. Brown, 104 F. 3d 1328 (1997).  To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past.  Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998).  The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves.  McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately.  See 38 C.F.R. § 4.25 (2011); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994).  Nonetheless, the evaluation of the same disability under various diagnoses is to be avoided.  See 38 C.F.R. § 4.14 (2011); see also Fanning v. Brown, 4 Vet. App. 225 (1993).

Analysis

In a March 2004 rating decision, the RO granted entitlement to service connection for a bilateral foot disability, diagnosed as bilateral lymphedema of both lower extremities, but the RO indicated that the disability had various diagnoses, to include venous insufficiency that was diagnosed by a January 2004 VA peripheral nerves examiner.  In an August 2007 rating decision, the bilateral foot disability was reclassified as bilateral postphlebitic syndrome.  The competent medical evidence shows that the bilateral foot disability has been variously diagnosed as lymphedema, chronic venous insufficiency, and postphlebitic syndrome.  The symptoms of the current diagnosis of chronic venous insufficiency are already contemplated in the service-connected bilateral postphlebitic syndrome.  There is no competent medical evidence of an additional disability manifested by chronic venous insufficiency which is separate from the postphlebitic syndrome for which the Veteran is already compensated.  The competent medical evidence does not show that the Veteran has a current disability for which service connection has not already been granted.  Therefore, a grant of service connection for venous insufficiency would violate the anti-pyramiding regulation, 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993).  Separate ratings may be granted only when "none of the symptomatology for any one of [the claimed conditions] is duplicative of or overlapping with the symptomatology of the other ... conditions." Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (emphasis in original).

The only evidence indicating that the chronic venous insufficiency is a separate disability from the service-connected bilateral postphlebitic syndrome are the bare assertions of the Veteran.  Lay evidence can be competent and sufficient to establish a diagnosis of a disability when (1) a lay person is competent to identify the medical disability, (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at that time supports a later diagnosis by a medical professional.  Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

Chronic venous insufficiency is not a disorder for which a lay person is competent to identify the medical disability.  The claimant, as a lay person without medical training, does not meet the burden of presenting competent evidence as to a diagnosis, merely by presenting her own statements.  While the appellant can attest to factual matters of which she has first-hand knowledge, e.g., swelling, she is not capable of making medical conclusions.  Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge").   There is no evidence showing, and the Veteran does not assert, that she has medical training to provide competent medical evidence as to diagnosing the claimed separate vascular disorder.  

For all the reasons stated above, the Board finds the preponderance of the evidence is against the claim of entitlement to service connection for venous insufficiency as secondary to the service-connected bilateral postphlebitic syndrome.  Consequently, the benefit of the doubt doctrine is not applicable, and service connection cannot be granted.  38 U.S.C.A. § 5107(b).  Accordingly, the claim is denied.


ORDER

Entitlement to service connection for venous insufficiency as secondary to the service-connected bilateral postphlebitic syndrome is denied.


REMAND

In a March 2006 rating decision, the RO denied ratings in excess of 10 percent for the bilateral foot disorders and the uterine fibroids.  In September 2006, the Veteran filed a notice of disagreement with those denials.  In a March 2007 correspondence, the RO indicated that they would not accept the September 2006 statement as a notice of disagreement.  The RO concluded that the statement was "premature" because VA treatment records had not been reviewed and because they were attempting to reschedule the appellant for a VA examination.  The Board disagrees with the RO's determination and accepts the September 2006 statement as a timely filed notice of disagreement with the above-mentioned denials in the March 2006 rating decision.

In an August 2007 rating decision, the RO assigned 20 percent disability ratings for the bilateral foot disorders effective December 28, 2004.  This is not a complete grant of benefits with regard to the bilateral foot disorders.  See AB v. Brown, 6 Vet. App. 35 (1993) (a veteran is presumed to be seeking the highest possible rating unless she expressly indicates otherwise).  Also, pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the RO should consider whether 20 percent or higher ratings are warranted during the one-year period prior to December 28, 2004.

In a December 2007 notice of disagreement, the Veteran disagreed with the combined rating of 60 percent from December 28, 2004, to October 3, 2006, for the service-connected disabilities, and the combined rating of 70 percent since October 4, 2006, for the service-connected disabilities.  Later in a January 2009 rating decision, service connection was severed for uterine fibroids effective April 1, 2009, and a 60 percent combined rating was assigned effective April 1, 2009.

In a May 2010 rating decision, the RO denied ratings in excess of 20 percent for the bilateral foot disabilities and a rating in excess of 10 percent for left foot hallux limitus deformity.  On July 2, 2010, the Veteran filed a notice of disagreement with these denials.  On July 14, 2010, the RO received a statement from her indicating that she was withdrawing her notice of disagreement.  On July 22, 2010, the RO received a statement from the claimant indicating again that she wished to appeal the denials of ratings in excess of 20 percent for the bilateral foot disabilities and a rating in excess of 10 percent for left foot hallux limitus deformity.  Therefore, the Board accepts the July 22, 2010, statement as a notice of disagreement with the denial of a rating in excess of 10 percent for left foot hallux limitus deformity in the May 2010 rating decision. 

In light of the above, a statement of the case must be issued concerning these issues.  Manlincon v. West, 12 Vet. App. 242 (1999).

Accordingly, the case is REMANDED for the following action:

The RO should issue a statement of the case addressing entitlement to an increased rating for right foot postphlebitic syndrome from December 28, 2003, to December 27, 2004, currently rated as 10 percent disabling; entitlement to an increased rating for right foot postphlebitic syndrome since December 28, 2004, currently rated as 20 percent disabling; entitlement to an increased rating for left foot postphlebitic syndrome from December 28, 2003, to December 27, 2004, currently rated as 10 percent disabling; entitlement to an increased rating for left foot postphlebitic syndrome since December 28, 2004, currently rated as 20 percent disabling; entitlement to an increased rating for uterine fibroids from December 28, 2003, to March 31, 2009, currently rated as 10 percent disabling; entitlement to a rating in excess of 10 percent for left foot hallux limitus deformity; entitlement to a combined rating in excess of 60 percent from December 28, 2004, to October 3, 2006, for the service-connected disabilities; entitlement to a combined rating in excess of 70 percent from October 4, 2006, to March 31, 2009, for the service-connected disabilities; and entitlement to a combined rating in excess of 60 percent since April 1, 2009, for the service-connected disabilities.  The Veteran is hereby informed that the Board may only exercise appellate jurisdiction over this matter if she perfects an appeal in a timely manner.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2011).

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




______________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs