Citation Nr: 1300713	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  08-24 038	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1.  Entitlement to an increased initial rating greater than 20 percent prior to November 30, 2011, for peripheral vascular disease (PVD) of the left lower extremity.

2.  Entitlement to an increased initial rating greater than 20 percent prior to November 30, 2011, for PVD of the right lower extremity.


REPRESENTATION

Appellant represented by:	Alabama Department of Veterans Affairs


ATTORNEY FOR THE BOARD

F. Yankey, Counsel


INTRODUCTION

The Veteran served on active duty from February 1966 to February 1968.  This case comes before the Board of Veterans' Appeals (Board) on appeal of a May 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi.  The RO in Montgomery, Alabama, currently has jurisdiction of the Veteran's increased rating claim.

In June 2010, March 2011, and October 2011, the Board remanded this appeal for additional evidentiary development.  The case has been returned to the Board for further appellate action.

As discussed further below, in an October 2012 rating decision, the RO granted higher ratings of 60 percent for the service-connected PVD of the left and right lower extremities, effective from November 30, 2011.  Thus, a staged rating is in effect.  Although the Veteran has disagreed with the effective date of the grant of the increased ratings, he has indicated that he is satisfied with the 60 percent ratings.  

A Veteran is presumed to be seeking the maximum rating permitted by law, but may limit his appeal to a lesser benefit.  Ab v. Brown, 6 Vet. App. 35, 39 (1993); Hamilton v. Brown, 4 Vet. App. 528, 544 (1993).


FINDING OF FACT

The Veteran's PVD of the left and right lower extremities is manifested by claudication on walking less than 25 yards on a level grade at two miles per hour, and additional symptoms of diminished peripheral pulses, trophic changes (absence of hair, dystrophic nails, thin skin), and an ankle/brachial index of 0.9 or less; there is no evidence of ischemic limb pain at rest, and either deep ischemic ulcers or an ankle/brachial index of 0.4 or less.



CONCLUSIONS OF LAW

1.  The criteria for a 60 percent rating, but not greater, for PVD of the left lower extremity are met since the August 22, 2008, filing date of the original claim on appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.31, 4.104, Diagnostic Code 7114 (2012).

2.  The criteria for a 60 percent rating, but not greater, for PVD of the right lower extremity are met since the August 22, 2008, filing date of the original claim on appeal.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.10, 4.31, 4.104, Diagnostic Code 7114 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) defined VA's duty to assist a Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

The claim arises from disagreement with the initial rating following the grant of service connection.  The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105.  Goodwin v. Peake, 22 Vet. App. 128 (2008).  Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements.  Id. 

The Duty to Assist 

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4). 

VA has obtained records of treatment reported by the Veteran, including service treatment records and VA treatment records.  The Veteran was also provided a proper VA examination in November 2011, to evaluate his PVD of the lower extremities, and there is no evidence or contention that there has been a change in the Veteran's symptoms since the last examination in November 2011.
In October 2011, the Board remanded the Veteran's claim to schedule the Veteran for another VA examination with information necessary to rate the above-noted disabilities under the pertinent rating criteria.  The RO scheduled the Veteran for a VA examination in November 2011, which he attended.  Therefore, the AOJ substantially complied with the Board's October 2011 remand instructions.

In his November 2012 statement, the Veteran argued that his disabilities should be evaluated as 60 percent disabling for the entire appeal period, i.e. from August 22, 2008.  While a claimant is generally presumed to be seeking the maximum benefit available by law, he can choose to limit his claim to a lesser benefit.  AB v. Brown, 6 Vet. App. 35 (1993).  Since this decision grants a 60 percent rating during the entire appeal period, further assistance is not required to assist the Veteran in substantiating the claim.  

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The appeal is thus ready to be considered on the merits.

General Legal Criteria

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012).  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012).  

Each disability must be considered from the point of view of the Veteran who is working or seeking work.  38 C.F.R. § 4.2 (2012).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.

In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified.  Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances.  38 C.F.R. § 4.21 (2012).

At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119, 126 (1999).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b).


Analysis

The Veteran's service-connected peripheral vascular disease of the bilateral lower extremities is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7114.  Under this code, claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachia index of 0.9 or less warrant a 20 percent rating.  Claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less warrant a 40 percent rating.  A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ankle/brachial index of 0.5 or less.  A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less.  38 C.F.R. § 4.104, Diagnostic Code 7114.

The notes following Diagnostic Code 7114 are as follows: Note (1): The ankle/ brachial index is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Note (2): Evaluate residuals of aortic and large arterial bypass surgery or arterial graft as arteriosclerosis obliterans. Note (3): These evaluations are for involvement of a single extremity.  If more than one extremity is affected, evaluate each extremity separately and combine (under § 4.25) using the bilateral factor (§ 4.26), if applicable.  Id. 

During a June 2008 VA examination, the Veteran complained of a progressive increase in numbness and a burning sensation in his feet.  He also complained of pain and weakness in his thighs when standing or walking.  On physical examination of the lower extremities, he had absent posterior tibial pulses, 1+ dorsalis pedis pulse.  He also had decreased sensation to monofilament to the level of the ankle.  In his lower leg above the ankle, he had decreased sensation to monofilament, but he was sometimes able to tell that he was being touched with it.  More proximally, he had intact sensation to monofilament.  His muscle, tone and bulk of the lower extremities appeared normal.  The examiner also noted that nerve conduction studies done in April 2008 showed sensorimotor polyneuropathy in the bilateral lower extremities, specifically left peroneal, left sural, left posterior tibial, right sural, and technical difficulties right peroneal and sural.  Posterior tibial did show sensorimotor polyneuropathy.  The examiner diagnosed diabetic peripheral neuropathy of the lower extremities, both right and left, with complete absence of sensation in his feet, diminished sensation in the lower calves with dysesthesias, both right and left lower extremity.

Outpatient treatment records from the VA Medical Center in Birmingham, Alabama show that during a follow-up visit in August 2008, the Veteran reported increased neuropathy symptoms, with cramps and pain in his legs extending to his thigh, diminished pedal pulsations, and evidence of popliteal dz, based on vascular study, and claudication symptoms.  He was diagnosed at that time with PVD, and it was recommended that he have a repeat vascular study.

The Veteran was afforded another VA examination in June 2010.  The Veteran was noted to have peripheral neuropathy, with numbness from the mid calves to the feet, and burning, tingling and aching in the bilateral calves to the feet.  He also complained of imbalance with intermittent stumbling and occasional use of a cane.  He was also noted to have peripheral vascular symptoms of the lower extremities, which included claudication and coldness.  On physical examination, the Veteran exhibited decreased posterior tibial pulse in the right lower extremity, with thin skin and absence of hair; and decreased dorsalis pedis pulse and posterior tibial pulse in the left lower extremity, with thin skin and absence of hair.  He was diagnosed with peripheral vascular disease of the bilateral lower extremities.  

In a November 2010 rating decision, the RO granted service connection for PVD of the right lower extremity and PVD of the left lower extremity.  Separate 20 percent ratings were assigned, effective from August 22, 2008, the date of VA treatment showing a diagnosis of PVD.

In an October 2011 decision, the Board addressed whether the assignment of initial 20 percent disability ratings for PVD of the right and left lower extremities was appropriate.  The Board ultimately found that after reviewing the results from a June 2010 VA examination and pertinent treatment records, it was unable to adequately assess whether the Veteran was entitled to higher ratings for his left and right lower extremity PVD.  More specifically, the findings were not detailed enough to rate under 38 C.F.R. § 4.104, DC 7114.  See October 2011 Board decision.  Accordingly, the Board remanded the issues so that another VA examination could be conducted to address the noted deficiencies.

In accordance with the Board's October 2011 remand, the Veteran was afforded his most recent VA examination in November 2011.  On physical examination, the Veteran was noted to have claudication on walking less than 25 yards on a level grade at 2 miles per hour, diminished peripheral pulses, and trophic changes (thin skin, absence of hair, dystrophic nails) of both lower extremities.  It was also noted that the Veteran regularly used a cane and walker.  Ankle/brachial index testing revealed a right ankle/brachial index of 0.81, and a left ankle/brachial index of 0.76.  The examiner also opined that the Veteran's vascular condition would prevent employment of a physical nature that would require walking.

In an October 2012 rating decision, the RO increased the ratings for the Veteran's PVD of the left and right lower extremities to 60 percent, effective November 30, 2011.

Following the October 2012 rating decision, in November 2012, the Veteran submitted a statement wherein he expressed satisfaction with the 60 percent rating assigned for his PVD of the left and right lower extremities.  However, he disagreed with the effective date assigned for the 60 percent ratings.  Specifically, the Veteran argued that the effective date of his award should be August 22, 2008, and not November 30, 2011.  Thus, the Board finds that the Veteran is arguing for initial ratings greater than 20 percent, prior to November 30, 2011.

In its October 2011 remand, the Board noted that the findings from the June 2010 VA examination, where the Veteran was diagnosed with PVD, and pertinent treatment records were insufficient with respect to whether the Veteran experienced claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour or on walking less than 25 yards on a level grade at 2 miles per hour, and whether he experienced ischemic limb pain at test.  These findings are required to adequately rate the Veteran's disability under 38 C.F.R. § 4.104, Diagnostic Code 7114.  Accordingly, the Board finds that the June 2010 VA examination is inadequate for rating purposes.  The only adequate examination report of record comes from the November 2011 VA examination, conducted in accordance with the Board's October 2011 remand instructions.

The Board's remand was based on a finding that the previous examination was inadequate.  Although that examination might on its face have supported the continuation of a 20 percent rating prior to November 30, 2011, it did not include all pertinent findings and cannot serve as the basis for providing a rating.  The November 2011 examination is the only adequate evaluation of the Veteran's disabilities during the period since the effective date of service connection. 

The November 2011 examination shows evidence of claudication on walking less than 25 yards on a level grade at two miles per hour, and additional symptoms of diminished peripheral pulses, trophic changes (absence of hair, dystrophic nails, thin skin), and an ankle/brachial index of 0.9 or less.  Accordingly, the Board will give the Veteran the benefit of the doubt and conclude that a 60 percent rating is warranted for the entire period since the effective date of service connection.  There is no evidence of ischemic limb pain at rest, and either deep ischemic ulcers or an ankle/brachial index of 0.4 or less; hence, a higher rating is not warranted at any time during the appeal period.  38 C.F.R. § 4.104, DC 7114.  

Resolving reasonable doubt in the Veteran's favor, an initial rating of 60 percent is granted for PVD of the left lower extremity, and PVD of the right lower extremity, effective August 22, 2008.  This represents a full grant of the benefits sought on appeal.  

Extra-schedular consideration

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension 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) (2012). 

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).  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). 

If the evidence raises the question of entitlement to an extraschedular rating, 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). 

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is considered contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

The Board has carefully compared the level of severity and symptomatology of the Veteran's diabetes PVD of the left and right lower extremities, with the established criteria found in the rating schedule.  There are no additional symptoms of his PVD of the left or right lower extremity which are not addressed by the rating schedule.  Thus, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for the disabilities discussed herein.  Hence, referral for consideration of an extraschedular rating is not warranted. 

Total Rating for Compensation Based on Individual Unemployability (TDIU)

The Court has held that TDIU is an element of all claims for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him.  38 C.F.R. § 4.16 (2012). 

Where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2001) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU).  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). 

In this case there is no evidence that a service connected disability has caused unemployability.  During his June 2010 VA examination, the Veteran reported that he was formerly self-employed, and that he had retired in 2009, due to decreased clientele.  The Veteran has not reported that he stopped working as a result of these service-connected disabilities.  As noted above, the November 2011 examiner opined that the Veteran's vascular condition would prevent employment of a physical nature that would require walking.  However, he did not find that the Veteran was unable to obtain or maintain all gainful employment due to a service-connected disability.  As there has been no allegation or evidence of unemployability attributable to the service connected disabilities, the Board finds that further consideration of entitlement to TDIU is not required.



ORDER

An increased rating of 60 percent, but not greater, for PVD of the left lower extremity is granted from August 22, 2008, subject to the statutes and regulations governing the payment of monetary benefits.

An increased rating of 60 percent, but not greater, for PVD of the right lower extremity is granted from August 22, 2008, subject to the statutes and regulations governing the payment of monetary benefits.




____________________________________________
Michael J. Skaltsounis
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs