Citation Nr: 1301510 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-36 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to a disability rating in excess of 10 percent prior to March 6, 2009, for thrombophlebitis of the left leg with pulmonary emboli and varicose veins. 2. Entitlement to a disability rating in excess of 20 percent after March 6, 2009, for thrombophlebitis of the left leg with pulmonary emboli and varicose veins. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION The Veteran served on active duty from September 1974 to February 1981. This matter comes before the Board of Veterans' Appeals (Board) from a February 2006 rating decision of the above Department of Veterans Affairs (VA), Regional Office (RO). While the appeal was pending, and specifically in a July 2009 determination, the RO increased the rating for the Veteran's service-connected thrombophlebitis of the left leg with pulmonary emboli and varicose veins from 10 percent to 20 percent effective from March 6, 2009. The Veteran has not expressed satisfaction with the 20 percent evaluation granted. As a result, he is presumed to be seeking the maximum possible evaluation, and the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993) (holding that, where there is no clearly expressed intent to limit the appeal, VA is required to consider entitlement to all available evaluations for that disorder). The issue of entitlement to service connection for post-phlebotic syndrome of the right leg has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). See December 2012 Informal Hearing Presentation. Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to March 6, 2009, the Veteran's thrombophlebitis of the left leg with pulmonary emboli and varicose veins is manifested by intermittent edema with prolonged standing or walking. Persistent edema, stasis pigmentation or eczema with or without intermittent ulceration, persistent ulceration, subcutaneous induration, or massive board-like edema with constant pain at rest were not shown. 2. Since March 6, 2009, the Veteran's thrombophlebitis of the left leg with pulmonary emboli and varicose veins is manifested by persistent edema, incompletely relieved by elevation of the extremity. Persistent edema, stasis pigmentation or eczema with or without intermittent ulceration, persistent ulceration, subcutaneous induration, or massive board-like edema with constant pain at rest have not been shown. 3. Subsequent to filing his claim, the evidence shows the Veteran had inferior vena cava surgery on June 14, 2006, without evidence of pulmonary hypertension or right ventricular dysfunction. CONCLUSIONS OF LAW 1. Prior to March 6, 2009, the criteria for a disability rating in excess of 10 percent for thrombophlebitis of the left leg with pulmonary emboli and varicose veins are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7121 (2012). 2. Since March 6, 2009, the criteria for a disability rating in excess of 20 percent for thrombophlebitis of the left leg with pulmonary emboli and varicose veins are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7121 (2012). 3. The criteria for entitlement to a separate 60 percent disability rating, and no greater, for chronic pulmonary emboli are met, effective from June 14, 2006. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.97, DC 6817 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Before addressing the merits of the increased rating issue, the Board notes that VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. §§ 3.159, 3.326(a). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in October 2005 of VA's duty to assist him in substantiating his claim under the VCAA, and the effect of this duty upon his claim. This letter also informed him of how disability ratings and effective dates are assigned. See Dingess, 19 Vet. App. at 484. A subsequent letter in February 2009 notified the Veteran of the types of evidence that may reflect a worsening of his service-connected left leg disability, including the nature and symptoms of the condition; the severity and duration of the symptoms; the impact of the condition and symptoms on employment; ongoing treatment records; recent Social Security determinations; statements from employers as to job performance, lost time or other information regarding how the condition affects his ability to work; and statements from people who have witnessed how the claimed disability affects him. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The timing defect of the February 2009 correspondence was cured by the RO's subsequent readjudication of the claim and issuance of a Statement of the Case in July 2009. Together, these letters addressed all notice elements. Nothing more was required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim adjudicated herein. His in-service and pertinent post-service treatment reports are of record. Relevant VA examinations were obtained in October 2005 and March 2009, in order to identify the current severity of the Veteran's service-connected for thrombophlebitis with pulmonary emboli and varicose veins, left leg. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are more than adequate, as they reflect a full review of all medical evidence of record, are supported by sufficient detail, and refer to specific documents and medical history and the Veteran's service history to support the conclusions reached. They also provide sufficient detail to rate the Veteran's service-connected thrombophlebitis of the left leg, including a thorough discussion of the effect of his symptoms on his functioning. The Board has considered that the Veteran has not been afforded a VA examination since March 2009, but finds that the medical evidence of record in this case is not too old to adequately evaluate his disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) [another VA examination is not warranted based on the mere passage of time]. No competent medical evidence, by or on behalf of the Veteran, has been submitted which suggests that his service-connected thrombophlebitis of the left leg with pulmonary emboli and varicose veins, has become worse in the period of time since the last evaluation. See Counts v. Brown, 6 Vet. App. 473, 478-9 (1994) and Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) [VA's duty to assist is not a license for a "fishing expedition"]. Moreover, given the lack of pertinent clinical findings since the March 2009 VA examination and the fact that the history provided by the Veteran during that examination, and considered by the examiner, is consistent with that reflected in the record, the examiner's report of that examination (which reflects not only the Veteran's history, but complaints, clinical findings and diagnoses) is sufficient for rating purposes. 38 C.F.R. § 4.2 (2012); Abernathy v. Principi, 3 Vet.App. 461 (1992). Consequently a new VA examination to rate the severity of his thrombophlebitis of the left with pulmonary emboli and varicose veins is not warranted. Thus, the Board finds that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. No useful purpose would be served in remanding this matter for yet more development. A remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit to the Veteran. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); & Quartuccio v. Principi, supra. Law and Analysis Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). Although a review of the recorded history of a disability is necessary in order to make an accurate evaluation, see 38 C.F.R. §§ 4.2, 4.41, the regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. See Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). However, where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran contends that his service-connected thromobophlebitis of the left leg with pulmonary emboli and varicose veins is more disabling than is reflected in the current 20 percent or previous 10 percent evaluations. Initially, the Board notes that in a December 2012 brief, the Veteran, through his representative, argued that a separate rating was warranted for the pulmonary emboli. The Veteran's left leg disability is currently assigned a single 20 percent evaluation under DC 7121 pertaining to post-phlebetic syndrome of any etiology. Under DC 7121, post-phlebitic syndrome warrants a 20 percent rating for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted for persistent edema or subcutaneous indurations, stasis pigmentation or eczema, and persistent ulceration. The maximum 100 percent rating is warranted for massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104. In support of the current claim is an October 2005 VA examination report. The examiner noted the Veteran's history of in-service knee injuries and subsequent development of venous thrombosis with several episodes of pulmonary venous emboli requiring Coumadin therapy. Examination revealed varicose veins which were 4+ on the left with no local tenderness and no abnormal thickening. A recent venous duplex scan revealed no evidence of deep vein thrombosis or chronic residual venous thrombosis. There was residual reflux in the deep venous system consistent with varicose veins. There was no evidence of any acute abnormalities on examination of the veins. The clinical impression was chronic varicose veins with no evidence of active disease, thrombophlebitis, or any relationship to pulmonary thrombi. Subsequent VA and private treatment records dated from 2005 to 2008 include an entry showing the Veteran underwent surgical placement of an inferior vena cava (IVC) filter on June 14, 2006, prior to a total right knee arthroplasty. See private treatment records from Rush North Shore Medical Center. During VA examination in March 2009, the examiner noted the Veteran's history of bilateral knee injuries in 1978 resulting in internal derangement and rapture of anterior cruciate ligaments (ACL). The Veteran underwent ACL reconstruction and both knee joints were immobilized with long leg casts for almost two months. In the postoperative period, the Veteran had a pulmonary embolism secondary to deep vein thrombosis. He had two more incidents of pulmonary emobolism in 1980 and 1990 and has been on Warfarin anticoagulation ever since. In June 2006, the Veteran underwent a right knee total arthroplasty. A Greenfield filter was placed in the IVC as a prophylaxis against pulmonary embolism. The Veteran's current complaint was of chronic pain and a feeling of pressure in the mid-calf region of both lower extremities. He reported edema in both legs after prolonged standing and walking. Prolonged standing intensifies the pain and forces the Veteran to get off his feet. Examination of the left leg revealed large varicose veins involving both saphenous systems. There was some hyperpigmentation of the skin and in certain places lipodermatosclerosis. Atrophie blanche was noted in the left lower leg (livedoid vasculopathy) of limited extent. There was no chronic cellulitis, stasis, or trophic ulcers. The most recent Doppler venous study from May 2006, showed the deep veins from the common femoral vein through the veins of the calf demonstrated normal flow augmentation and compressibility with no significant change since September 2005. The examiner noted the Veteran was on Warfarin anticoagulation for life and was followed by the Coumadin Clinic on a monthly basis for evaluation of the coagulation profile status. Based on a review of the above evidence, the Board concludes that entitlement to an evaluation in excess of 20 percent for thrombophlebitis with pulmonary emboli and varicose veins, left leg, or a 10 percent rating, prior thereto, is not warranted. Prior to March 6, 2009, no active disease process was noted on examination, however, symptoms were at least suggestive of intermittent edema on functional use and consistent with a 10 percent rating, and without persistent edema, the Board agrees that a 20 percent rating prior to March 6, 2009, was not warranted. Examination on March 6, 2009, however, was found to reveal symptoms of more persistent edema and therefore a 20 percent rating was assigned. Under the applicable rating criteria, in order to receive a 40 percent evaluation or higher, the Veteran must have persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration, or persistent ulceration, subcutaneous induration, or massive board-like edema with constant pain at rest for even higher ratings. However, the medical evidence demonstrates that he has edema with prolonged standing and walking, but there is no notation at any time during the time frame on appeal that there are symptoms of stasis pigmentation, eczema, or ulceration, and subcutaneous induration and/or massive board-like edema with constant pain at rest is also not shown. In fact, examination in March 2009 specifically noted that there was no chronic cellulitis, stasis, or trophic ulcers. Although an increased rating is not warranted for the Veteran's thrombophlebitis with pulmonary emboli and varicose veins, left leg, at any point during the time frame on appeal, the Board acknowledges the representative's argument that a separate rating may be warranted for pulmonary emboli under 38 C.F.R. § 4.97, DC 6817. Under DC 6817, pulmonary vascular disease will be rated noncompensable when it is asymptomatic following resolution of a pulmonary thromboembolism, and 30 percent if symptomatic. Where there is chronic pulmonary thromboembolism requiring anticoagulant therapy, or following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction, a 60 percent rating is assigned. Pulmonary vascular disease resulting in primary pulmonary hypertension, or chronic pulmonary thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale; or pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale warrants a 100 percent rating. 38 C.F.R. § 4.97, DC 6817. The Board notes that all disabilities, including those arising from a single disease entity, are to be rated separately unless the conditions constitute the same disability or the same manifestation. See 38 C.F.R. §§ 4.14, 4.25. The critical element permitting the assignment of multiple ratings under several diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225 (1993). The rationale behind this "rule against pyramiding" is that a claimant should not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). The RO has not explained the reason for its combination of the Veteran's thrombophlebitis and pulmonary emboli disabilities under one rating. It has also been demonstrated that both disabilities have distinguishable rating criteria that are applicable in evaluating the level of impairment for each disability. The rating criteria for thrombophlebitis also include symptomatology involving lower extremity veins/arteries and skin changes, which constitute distinctly different symptomatology from his pulmonary emboli involving the pulmonary veins/arteries. Since the Board finds that the pulmonary emboli are productive of separate and distinct symptoms, the Board will consider whether a separate rating is warranted. According to the above rating criteria, a 60 percent evaluation is warranted following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. As reported previously, the record shows that the Veteran had an inferior vena cava filter placed on June 14, 2006, due to his history of pulmonary emboli and has continued on anticoagulants. Consequently, the Board finds that a separation 60 percent rating is warranted for the Veteran's service-connected pulmonary emboli, effective from the date of June 14, 2006. A rating in excess of 60 percent is not warranted because there is no evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale. In summary, for the above-noted reasons, the Board finds that the Veteran's thrombophlebitis and varicose veins of the left leg do not more nearly approximate the criteria for a disability rating in excess of 10 percent prior to March 6, 2009, or in excess of 20 percent since that date under DC 7121. However, the Board will assign a separate disability rating of 60 percent (and no greater) for pulmonary emboli effective from June 14, 2006, under DC 6817. Pursuant to 38 C.F.R. § 3.321(b)(1), an extraschedular rating is in order when there exists such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards. Therefore, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the schedular evaluations in this case are not inadequate. The Veteran has not identified any factors which may be considered to be exceptional or unusual as to render impractical the application of the regular schedular standards and the Board has been similarly unsuccessful. As discussed above, there are higher ratings available for the Veteran's service-connected thrombophlebitis with pulmonary emboli and varicose veins, left leg, but the required manifestations have not been shown in this case. Moreover, the evidence does not establish that either disorder necessitates frequent periods of hospitalization and the VA examination is void of any finding of exceptional symptomatology beyond that contemplated by the schedule of ratings. Although the Board has no reason to doubt that the Veteran's symptomatology adversely impacts his employability, this is specifically contemplated by the ratings currently assigned. Accordingly, the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board has also carefully considered the Veteran's contentions in making this decision. However, inasmuch as the objective evidence does not otherwise substantiate the subjective complaints, his assertions do not suffice to assign higher ratings for thrombophlebitis with pulmonary emboli and varicose veins, left leg. The current level of disability shown is encompassed by the assigned ratings and, with due consideration to the provisions of 38 C.F.R. § 4.7, higher evaluations are not warranted at any time during the current appeal. In reaching this determination, the Board has considered the applicability of staged ratings under Hart, supra. Finally, the Board recognizes that the Court has recently held that a request for a total disability rating based on individual unemployability due to service-connected disability (TDIU), whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of a claim for increased compensation. There must be cogent evidence of unemployability in the record. Rice v. Shinseki, 22 Vet. App. 447 (2009), citing Comer v. Peake, 552 F.3d 1362 (Fed. Cir. 2009). However, the holding of Rice is inapplicable here because the evidence of record does not illustrate that the Veteran's service-connected thrombophlebitis with pulmonary emboli and varicose veins, left leg prevents him from obtaining and maintaining gainful employment - nor has the Veteran so contended. At this point, therefore, there is no evidence of unemployability due solely to this service-connected disability, and the issue of entitlement to a TDIU need not be addressed further. ORDER A disability rating in excess of 10 percent for thrombophlebitis and varicose veins, left leg, prior to March 6, 2009, is denied. A disability rating in excess of 20 percent for thrombophlebitis and varicose veins, left leg, since March 6, 2009, is denied. A separate 60 percent rating for thrombophlebitis with pulmonary emboli is granted, effective from June 14, 2006, subject to the governing criteria applicable to the payment of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs