Citation Nr: 1301667 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 07-33 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to increased evaluation for arteriosclerosis obliterans (ASO) disability of the left leg, initially rated as 40 percent disabling prior to May 12, 2009, and rated as 60 percent disabling from that date. 2. Entitlement to an initial evaluation in excess of 40 percent for ASO disability of the right leg. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that in relevant part granted service connection for ASO of the right and left legs and assigned initial disability ratings of 20 percent for each leg, effective from August 23, 2006. During the course of the appeal the RO issued a rating decision that increased the initial evaluations for ASO of both legs to 40 percent each; the same rating decision also increased the evaluation for left leg AS0 to 60 percent effective from May 12, 2009. The Veteran has not indicated he is satisfied with these increased ratings, so the appeal remains active before the Board. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim for increased rating remains in controversy where less than the maximum available benefit is awarded.) The issues have been recharacterized on the title page to reflect the increased ratings awarded by the RO. In September 2012 the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDINGS OF FACT 1. From August 23, 2006 to May 12, 2009, the Veteran's ASO disability of the left leg most closely approximated claudication on walking between 25 and 100 yards on a level grade at two miles per hour, trophic changes (thin skin, absence of hair, dystrophic nails) and ankle/brachial index (ABI) of 0.77 or greater. 2. From May 12, 2009, the Veteran's ASO disability of the left leg has most closely approximated claudication on walking less than 25 yards on a level grade at two miles per hour and ABI of 0.54 or greater; there is no evidence of ischemic limb pain at rest or deep ischemic ulcers. 3. From August 23, 2006, the Veteran's ASO disability of the right leg has most closely approximated claudication on walking between 25 and 100 yards on a level grade at two miles per hour, trophic changes and ABI of 0.8 or greater. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation higher than 40 percent for ASO disability of the left leg prior to May 12, 2006, and evaluation higher than 60 percent from that date, are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.104, Diagnostic Code 7114 (2012). 2. The criteria for an initial evaluation higher than 40 percent for ASO disability of the right leg are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.104, Diagnostic Code 7114 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. This appeal arises from the Veteran's disagreement with the initial evaluation following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial and will not be discussed. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran's service treatment records and service personnel records, VA medical treatment records, and private treatment records identified by the Veteran have been obtained. The Board remanded the case for additional development including medical examination, which was performed in August 2012. The RO substantially complied with the requirements articulate in the Board's remand. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), holding that in the context of medical examinations/opinions only substantial compliance, not strict compliance, with the terms of the Board's opinion request is necessary. There is no indication of record that any additional evidence relevant to the issues decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide any additional notice or assistance reasonably affects the outcome of this case, any such failure is harmless. See Shinseki v. Sanders, 129 S.Ct. 1696 (1996) (reversing prior cases law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). Applicable Laws and Regulations Disability evaluations are determined by the application of the 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. §§ 3.321(a), 4.1. 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 all increased rating claims the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, 38 C.F.R. § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Diseases of the heart and cardiovascular system are rated under 38 C.F.R. § 4.104; arteriosclerosis obliterans (ASO) is rated under the provisions of Diagnostic Code (DC) 7114. In relevant part, the rating criteria of DC 7114 are as follows. A rating of 40 percent is assigned for claudication on walking between 25 and 100 yards on a level grade at two miles per hour; and, trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index (ABI) of 0.7 or less. A rating of 60 percent is assigned for claudication on walking less than 25 yards on a level grade at two miles per hour; and, either persistent coldness of the extremity or ABI of 0.5 or less. A rating of 100 percent is assigned for ischemic limb pain at rest; and, either deep ischemic ulcers or ABI of 0.4 or less. 38 C.F.R. § 4.114, DC 7114. Note (1) to DC 7114 states the ABI 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) to DC 7114 states that residuals of aortic and large arterial bypass surgery are evaluated as ASO. Note (3) to DC 7114 states that these evaluations are for involvement of a single extremity. If more than one extremity is affected, each extremity is evaluated separately and combined under § 4.25, using the bilateral factor (§ 4.26) if applicable. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). Evidence and Analysis The claims on appeal arose from a July 2006 request from the Veteran for increased rating for his service-connected diabetes mellitus disability. He was afforded a VA examination on August 23, 2006, in which the examiner determined the Veteran had ASO of the bilateral lower extremities secondary to the diabetes mellitus. The RO thereupon issued the November 2006 rating decision on appeal that granted service connection for ASO on a secondary basis, effective from the date of the examination that diagnosed the disorder as being secondary to the service-connected disability. Evaluation of the Veteran's bilateral ASO disability is complicated by the fact that he is paraplegic due to a nonservice-connected workplace injury (motor vehicle accident in 1978 while working as a truck driver), which effectively precludes rating based on claudication after walking 25 yards. Although the paraplegia is not service-connected the Veteran has secondary service connection for his paraplegia-related decubitus ulcers because the ulcers are aggravated by his service-connected diabetes mellitus, and the decubitus ulcers and the ASO disability have symptoms that are somewhat overlapping as regards trophic changes of the skin. The decubitus ulcers are separately compensated ; they are not on appeal before the Board; and will not be addressed in the analysis of the ASO disability on appeal. See Brady v. Brown, 4 Vet. App. 203 (1993) (holding that the rating schedule may not be employed as a vehicle for compensating a claimant twice or more for the same symptomology since such a result would overcompensate the claimant for the actual impairment of his earning capacity). The Veteran had a VA-contracted medical examination on August 23, 2006, in which Doppler arterial flow study showed an ABI of .88 in the right leg and .77 in the left leg. Transthoracic echocardiogram was essentially normal. Physical examination of the extremities showed persistent coldness, with both feet being cool to the touch; atrophic skin changes were manifested by absence of hair and skin thinning prominent below the knees. The peripheral pulses were femoral pulse 2+ bilaterally, popliteal pulse 1+ bilaterally and anterior tibial pulse absent bilaterally; the dorsalis pedis pulse was 1+ on the right and absent on the left. The examination report is silent in regard to claudication with walking, possibly because the Veteran was confined to a wheelchair. The examiner diagnosed peripheral artery disease of the lower extremities, diagnosed as ASO secondary to diabetes mellitus. The Veteran presented to his VA medical provider in October 2007 for his annual examination, at which time his chief complaint was fatigue. He was noted to have recent history significant for decubitus ulcers (bed sores) secondary to paraplegia Examination of the skin showed well-healing right trochanter and left heel wounds and no new lesions. The Veteran was noted to use a motorized wheelchair for mobility but to be independent in all activities of daily living (ADLs). Neurological examination showed no motor strength or sensory in the bilateral lower extremities. Electrocardiogram showed some tachycardia but was otherwise unchanged from 2006. Doppler arterial flow study was not performed, so the examination report is silent for an ABI. The Veteran presented to the VA urgent care clinic in August 2008 complaining of recurrence of cellulitis on the third toe of the left foot. Clinical examination confirmed cellulitis on the left foot middle toe. A follow-up urgent care note in September 2008 stated the cellulitis had improved but the Veteran was advised to monitor the site for any evidence of infection. VA performed a spinal cord injury (SCI) home care assessment in February 2009. The examiner observed the Veteran to be using a wheelchair for mobility but stated the Veteran was independent for mobility, dressing, eating, bathing, bowel and bladder although with deficits in the areas of bowel and bladder management, wound care, hygiene and medication management that would need to be addressed by the home care provider. The Veteran had a VA-contracted medical examination for ASO in May 2009 in which he endorsed persistent coldness of the extremities. Physical examination showed no sign of skin disease, and clinical examination of the heart was grossly normal. Examination of the skin did not reveal atrophic skin changes, ulceration, gangrene, ischemic limb pain or persistent coldness, but mottled skin changes were noted as a trophic change associated with ASO. The peripheral pulses were 2+ in the bilateral upper and bilateral lower extremities. Doppler testing showed ABI of 0.96 on the right and 1.03 on the left. The examiner continued the previous diagnosis of ASO of the bilateral lower extremities; the examiner stated the Veteran condition on the left was normal while on the right there was minor peripheral vascular disease. The Veteran's subjective factor was continued leg pain, while objective factor was pain on exertion per Doppler testing. The effect of the condition on the Veteran's daily activities was to cause fatigue in the legs. The Veteran presented to VA urgent care in May 2009 complaining of redness on the left calf that he attributed to recurrence of cellulitis. Examination showed erythema up to the left inner thigh, but the skin was warm, pink and dry. The Veteran had a VA annual SCI evaluation in November 2009 in which he endorsed no remarkable substantive changes in sensory or motor function. The Veteran endorsed significant history during the past year of treatment for pressure sores, especially in the right trochanter (thigh) but also of the coccyx and left hip. The Veteran reported being independent in all ADLs. Examination of the skin was remarkable for dry dressings on pressure sore wounds. The extremities had no pretibial or pedal edema, and dorsalis pedal pulses were present bilaterally. Motor strength, sensory and deep tendon reflexes were absent in the bilateral lower extremities. The impression was no findings to suggest a clinically significant decline in sensory or motor function; neuropathic pain and chronic mechanical pain were being managed well on medication and no changes in medication regimen were recommended. Cardiology, including electrocardiogram, also showed no significant change. A VA history and physical (H&P) evaluation in March 2010 noted history of non-healing/unstable pressure sores on the right trochanter and the sacrum; there is no mention of past or current deep ischemic ulcers attributed to ASO. The H&P is also silent in regard to any history of claudication problems. An evaluation of the skin by a VA SCI nurse on March 16, 2010, observed that both the Veteran's forefeet were currently "cool-ish" to the touch and slightly dusky. The Veteran underwent elective trochanter osteotomy and soft tissue flap on March 18, followed by a long period of inpatient convalescence through June 19, 2010. During convalescence the Veteran's skin was examined on a daily basis and was consistently noted as being grossly normal for color (normal for ethnic group), temperature (warm), moisture (dry) and turgor (within normal limits), without further reference to coolness of the feet. (The single exception is a nursing note on June 10, 2010, stating the Veteran's feet were "slightly cool to the touch" in the morning but were warmer to the touch in the afternoon.) Inpatient convalescence notes are also silent in regard to any claudication problems or other impairment of the lower extremities attributed to ASO. A VA SCI outpatient note on June 15, 2010 shows impression of probable cellulitis in the right foot, apparently resolved by use of Dicloxacillin. The temperature of both feet was the same, with no drainage or increased warmth; both feet were noted to be purplish when dependent. The Veteran had a VA annual SCI evaluation in October 2010 in which he denied skin problems since his skin flap surgery in March. He denied changes in sensation. In terms of functional skills, the Veteran was assessed to be independent for eating, grooming, dressing upper body, basic homemaking tasks, community access and safety judgment; he was assessed as modified independent for reading (needs glasses), writing (sloppy handwriting), bathing (needs bench), dressing lower body (in bed), toilet hygiene and clothing management, and transportation (the Veteran could drive himself in a car with side lift and hand controls). The examiner noted there were no subjective or objective signs indicating a significant decline in sensory or motor function and no changes in neuropathic pain history. The examiner also stated the Veteran was independent in all basic self-care and that the skin remained intact with well-healed surgical scars (from decubitus ulcer surgeries). The Veteran had a VA physical therapy (PT) evaluation in June 2010. The Veteran again denied skin issues since surgery in March. The Veteran complained of pain to the torso/buttocks region, but there is no indication of ischemic leg pain. The Veteran reported being out of bed 17-18 hours per day. The Veteran endorsed having no tone in the lower extremities; he also reported occasional swelling /edema of the feet which would dissipate overnight. Lower extremity strength was measured as 0/5. In January 2011 the Veteran presented to the VA SCI clinic complaining of recurrence of cellulitis in the left foot and leg. The left leg was shown to be erythematous and warmer to the touch from the foot up to the thigh. A regimen of Dicloxacillin was prescribed, and a follow-up note in January 2011 states the cellulitis was resolving; the left foot continued to be erythematous and warm to the touch. In February 2011 the Board remanded the case for an addendum opinion or reexamination to resolve ambiguities in the VA-contracted medical examination for ASO that was performed in May 2009. Because the contracted physician who had performed the previous examination was not available the Veteran was referred for a new examination by a VA physician. The Veteran was examined by a VA physician in March 2011 who reviewed the claims file. The examiner noted the Veteran to be paraplegic at level T6 with no sensation or motor function in the lower extremities; it was therefore impossible for the Veteran to describe any degree of claudication or pain at rest. The Veteran denied any changes in his legs since 2006. The Veteran's current radial, ulnar, and femoral pulses were 2+ bilaterally, popliteal pulses were 1+ bilaterally and dorsalis pedis and posterior tibial pulses were not palpable. The Veteran's extremities were cool, atrophied and with shiny skin typical of paraplegic changes. The examiner stated it was impossible to predict the degree of claudication in this paraplegic Veteran. The examiner also stated it was beyond his medical knowledge to provide an opinion regarding the question of claudication, and that such an opinion would require consultation with a vascular specialist who had adequate experience working with paraplegics. The Veteran was examined in August 2012 by a VA physician who reviewed the claims file and VA treatment records. The examiner noted the Veteran's medical history in detail, to include examinations and inpatient/outpatient treatment reports. The examiner stated the Veteran's case had been presented to the Chief of Vascular Surgery at the VA Medical Center, who recommended that ankle-arm indices be repeated, which was done in July 2012 and showed arm-ankle index (AAI) of 0.8 on the right (characterized as "slightly abnormal") and 0.54 on the left (characterized as "abnormal"). The examiner stated the Veteran was shown to have permanent and total loss of sensory and motor capacities in the bilateral lower extremities since 1978, with no sensation below the T-6 lines and inability to walk. Regarding ABI values, the examiner noted treatment records in August 2006 showed ABI values of 0.88 and 0.84 on the right and 0.80 and 0.77 on the left; because these values were less than 0.9 they were suggestive of a degree of arterial obstruction often suggestive of claudication. Although the VA-contracted medical examination in May 2009 showed normal ABI values (greater than 0.9) this evaluation was viewed with suspicion as being falsely negative because ASO to the degree demonstrated in August 2006 would not be expected to have improved clinically. For this reason, the new values were obtained which showed slight worsening of ASO on the right down to 0.8 and moderate-to-severe worsening on the left down to 0.54. The examiner cited his own clinical experience treating patients with similar degrees of ASO but who were not paraplegic and could walk. Applying this experience to this Veteran's situation, the examiner stated that if the Veteran could walk and had sensation he would as likely as not experience leg claudication on the right side after walking between 25 and 100 yards on a level grade at two miles per hour due to his mild-to-moderate ASO on the right side, while he would experience leg claudication on the left after walking less than 25 yards due to his moderate-to-severe ASO on that side. The evidence of record shows that the Veteran's ASO of the right lower extremity has not approximated the rating criteria for a rating higher than 40 percent at any time since service connection was granted in August 2006. The higher 60 percent rating requires claudication on walking less than 25 yards on a level grade at two miles per hour and, either persistent coldness of the extremity or ABI of 0.5 or less. These provisions are conjunctive, not disjunctive. See Melson v. Derwinski, 1 Vet. App. 334 (1991) (holding that the use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision had to be met). Compare Johnson v. Brown, 7 Vet. App. 95 (1994) (holding that only one disjunctive "or" requirement had to be met in order for an increased rating to be assigned). The evidence shows neither claudication nor ABI of 0.5 meeting the schedular criteria for higher rating. The Veteran has not asserted persistent coldness, nor is persistent coldness shown on clinical examination (intermittent coolness of the feet was recorded but routine examinations of the skin were consistently normal) and, in any event, persistent coldness, alone, is not sufficient to support a higher rating. Similarly, the disability picture associated with ASO of the left lower extremity is not shown to approximate the criteria for a rating higher than 40 percent prior to May 2009. Neither qualifying ABI nor qualifying claudication is shown prior to that date. The RO assigned a higher 60 percent rating for the left leg ASO effective from May 12, 2009, the date of the VA-contracted ASO examination that produced clinical observations that were essentially refuted by the VA examiner in August 2012; an increase cannot be assigned prior to being clinically established. 38 C.F.R. § 3.400. Since that date, the Veteran's ASO of the right leg is not shown to approximate the schedular criteria for a 100 percent rating, which requires ischemic limb pain at rest and either deep ischemic ulcers or ABI of 0.4 or less. There is no subjective or objective evidence of record showing that any of these three criteria have been met. Because the schedular criteria for higher ratings were not met at any distinct period during the course of the appeal, further "staged ratings" are not warranted. Fendersont, 12 Vet. App. 119; Hart, 21 Vet. App. 505. The Board has considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). The objective and subjective manifestations of the service-connected ASO disability on appeal (specifically, loss of mobility associated with fatigue in the legs) are specifically contemplated by the schedular criteria. Accordingly, referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not warranted. Finally, a request for a 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; see Rice v. Shinseki, 22 Vet. App. 447 (2009). The question of TDIU entitlement may be considered as a component of an appealed increased rating claim if the TDIU claim is based solely upon the disability or disabilities which are the subject of the increased rating claim. If the veteran asserts entitlement to a TDIU based in whole or in part on other service-connected disabilities which are not the subject of the appealed RO decision the Board lacks jurisdiction over the TDIU claim except where appellate jurisdiction is assumed in order to grant a benefit, pursuant to 38 C.F.R. 19.13(a). See VAOGCPREC 6-96. During the course of this appeal the RO adjudicated a formal claim for TDIU, initially denying a TDIU by a rating decision in September 2008 but subsequently granting a TDIU effective from January 1, 2009. The Veteran has not asserted, and the evidence does not s how, that prior to January 2009 he was rendered unemployable by the ASO disability on appeal, alone. Accordingly, a claim for TDIU is not raised by the rating issues herein decided. The preponderance of the evidence is against the claims; there is no doubt to be resolved; increased evaluations for ASO of the right and left legs are not warranted. ORDER Increased evaluation for right leg arteriosclerosis obliterans (ASO) disability of the left leg, initially rated as 40 percent disabling prior to May 12, 2009, and rated as 60 percent disabling from that date, is denied. An initial evaluation in excess of 40 percent for ASO disability of the right leg is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs