Citation Nr: 1303052 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 09-31 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to restoration of a 20 percent rating for peripheral vascular disease of the left lower extremity. 2. Entitlement to an increased rating for peripheral vascular disease of the left lower extremity. 3. Entitlement to service connection for peripheral vascular disease of the upper extremities, to include as secondary to the service-connected coronary artery disease. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from April 1971 to May 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The issues of entitlement to an increased rating for peripheral vascular disease of the left lower extremity, and entitlement to service connection for peripheral vascular disease of the upper extremities, 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. The Veteran's service-connected peripheral vascular disease of the left lower extremity was rated 20 percent disabling for less than five years when the RO reduced the rating to zero percent. 2. In April 2006, the RO granted service connection for coronary artery disease and assigned a 100 percent disability rating, effective January 30, 2004. As a result, the October 2008 rating decision which reduced the disability rating assigned to the Veteran's peripheral vascular disease of the left lower extremity, effective from May 29, 2008, did not result in a reduction in compensation payments. 3. At the time of the October 2008 rating decision which reduced the rating for the Veteran's peripheral vascular disease of the left lower extremity, the evidence did not show material improvement in the service-connected disability. CONCLUSION OF LAW A 20 percent evaluation for peripheral vascular disease of the left lower extremity is restored. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.105(e), 3.344(c), 4.71a, Diagnostic Code 7114 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide 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. The law and regulations 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 VA 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. However, the regulation governing reduction, 38 C.F.R. § 3.105(e), contains its own notice provisions and procedures. As such, the VCAA is not applicable. Barger v. Principi, 16 Vet. App. 132 (2002). Section 3.105(e) provides that where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(e). In this case, the provisions of 38 C.F.R. § 3.105(e) do not apply because the rating action which reduced the Veteran's disability did not result in a reduction of compensation payments. Specifically, prior to his reduction, the Veteran had been awarded a 100 percent disability rating for coronary artery disease, effective from January 30, 2004. As a result, the October 2008 rating decision which reduced the disability rating assigned to the Veteran's peripheral vascular disease of the left lower extremity, effective from May 29, 2008, did not result in a reduction in compensation payments. See Stelzel v. Mansfield, 508 F.3d 1345 (Fed. Cir. 2007) (holding that 38 U.S.C. § 3012(b)(6) (1962) and 38 U.S.C. § 5112(b)(6) do not require VA to provide 60 days notice prior to a ratings reduction where the overall compensation paid to the veteran is not reduced). In any event, the Board observes that the Veteran has been accorded the opportunity to present evidence and argument in support of his claim. The April 2008 rating decision which granted service connection for peripheral vascular disease of the left lower extremity noted that his VA treatment records and recent VA examination did not include a current ankle/brachial index and that a new VA examination had been ordered. The Veteran was informed that these test results "could warrant a change in [the] current evaluation." In the October 2008 rating decision currently on appeal, the Veteran was informed that his disability rating was being reduced. He was provided with the relevant law and regulations in the September 2009 statement of the case and his claim was readjudicated in the December 2012 supplemental statement of the case. He declined to exercise his option of a personal hearing with a Veterans Law Judge. LAW AND ANLAYSIS There is no question that a disability rating may be reduced; however, the circumstances under which rating reductions can occur are specifically limited and carefully circumscribed by regulations promulgated by the Secretary. Dofflemyer v. Derwinski, 2 Vet.App. 277, 280 (1992). The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted. In this regard, 38 C.F.R. § 3.344(a) notes that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). If doubt remains, after according due consideration to all the evidence developed by the several items discussed in paragraph (a) of this section, the rating agency will continue the rating in effect, citing the former diagnosis with the new diagnosis in parentheses, and following the appropriate code there will be added the reference 'Rating continued pending reexamination ____ months from this date, § 3.344.' The rating agency will determine of the basis of the facts in each individual case whether 18, 24, or 30 months will be allowed to elapse before the reexamination will be made. 38 C.F.R. § 3.344(b). The provisions of paragraphs (a) and (b) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Re-examination disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The 20 percent disability evaluation for his peripheral vascular disease of the left lower extremity was awarded effective January 30, 2004 and was reduced effective May 29, 2008, less than 5 years later. See Brown v. Brown, 5 Vet.App. 413, 418 (1993) (finding that the express language of § 3.344(c) and other VA regulations compels the conclusion that the duration of a rating for purposes of § 3.344(c) must be measured from the effective date assigned that rating until the effective date of the actual reduction). Accordingly, the requirements under 38 C.F.R. § 3.344(a) and (b) do not apply in the instant case, and 38 C.F.R. § 3.344(c) does apply. Nevertheless, the U.S. Court of Appeals for Veterans Claims (Court) has held that several general regulations are applicable to all rating reduction cases, without regard for how long a particular rating has been in effect. The Court has stated that certain regulations 'impose a clear requirement that VA rating reductions, as with all VA rating decisions, be based upon a review of the entire history of the veteran's disability.' Brown at 420 (referring to 38 C.F.R. §§ 4.1, 4.2, 4.13). A rating reduction requires an inquiry as to 'whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.' Brown at 421. Thus, in any rating-reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that improvement reflects an improvement under the ordinary conditions of life and work. Historically, the Veteran was granted service connection for peripheral vascular disease of the left lower extremity in an April 2008 rating decision. He was assigned a 20 percent disability rating effective January 30, 2004. The Veteran's peripheral vascular disease has been rated under Diagnostic Codes 7005-7114. See 38 C.F.R. § 4.27 (2012) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 7114 (arteriosclerosis obliterans) is deemed by the Board to be the most appropriate code, primarily because it pertains specifically to the disability at issue (peripheral artery disease) but also because it provides specific guidance as to how symptoms of this disability are to be evaluated. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and the Veteran has not requested that another diagnostic code should be used. Under Diagnostic Code 7114, a 20 percent rating is assigned for arteriosclerosis obliterans with claudication on walking more than 100 yards, and; diminished peripheral pulses or ankle/brachial index of 0.9 or less. Arteriosclerosis obliterans (peripheral vascular disease) resulting in 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 warrants a 40 percent rating. Arteriosclerosis obliterans (peripheral vascular disease) resulting in 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 warrants a 60 percent disability rating. Arteriosclerosis obliterans (peripheral vascular disease) resulting in ischemic limb pain at rest, and; either deep ischemic ulcers or ankle/brachial index of 0.4 or less warrants a 100 percent disability rating. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2012). 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. 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. 38 C.F.R. § 4.104, Diagnostic Code 7114, Notes (1) and (3). As noted, the Veteran was granted service connection for peripheral vascular disease of the left lower extremity in an April 2008 rating decision. A 20 percent rating was assigned effective January 30, 2004. In assigning the 20 percent disability rating, the RO noted that a July 2003 VA treatment record stated that the Veteran's femoral artery pulse was "feeble." This report also documented that his peripheral pulses were absent. The AOJ specifically noted that there was claudication at 100 yards and a ankle/brachial index of .98. The Board may only assume that the AOJ considered 38 C.F.R. § 4.7 since the index of .98 did not support a 20 percent evaluation. A private treatment record from September 2002 noted that the Veteran had pain in his left lower extremity after walking 100 yards. During an October 2003 VA Agent Orange examination, the Veteran complained of cold feet. His dorsalis pedis pulse and posterior tibial pulse were absent. An October 2003 VA treatment record documents that the Veteran could walk 100 to 200 yards without pain, but that he will experience cramps in his legs at night while resting. His ankle/brachial index was recorded at 0.98. He was observed to have a "slightly palpable" dorsalis pedis pulse. A February 2004 VA treatment record notes that the Veteran's peripheral pulses were palpable. During a November 2005 VA examination it was noted that the Veteran's peripheral vascular blockage in his lower legs was preventing exercise testing. It was also noted that the Veteran does not engage in any physical activity beyond slow walking for less than one quarter mile (400 yards). During an April 2008 VA examination the Veteran complained that his disability had been getting progressively worse which caused moderate to severe limitations on his ability to do chores, exercise or go shopping. A physical examination revealed that his pulses were intact. The VA examiner also stated there were no significant findings in the Veteran's lower extremities. The color and temperature of both lower extremities was normal, however, the examiner indicated that exercise was precluded by the Veteran's peripheral vascular disease. As noted, when the RO granted service connection for peripheral vascular disease of the left lower extremity, it noted that neither the current VA treatment reports or current VA examinations included an ankle/brachial index and that a new VA examination had been ordered to obtain this missing test result. The requested ankle/brachial index test was conducted on May 28, 2008 and revealed a "normal" index of 1.02 in the left lower extremity. Prior to reducing an evaluation, there must be evidence of improvement or identification of clear and unmistakable error. Based on the evidence of record, the Board finds that the reduction from 20 percent to noncompensable (zero percent) for the service-connected peripheral vascular disease of the left lower extremity was not proper as material improvement was not identified and the evidence upon which the reduction was based was less thorough than the evidence used to support the 20 percent evaluation. The treatment records from when the Veteran filed his claim show claudication on walking more than 100 yards and diminished peripheral pulses. His ankle/brachial index was 0.98. The Veteran reported that his disability had increased in severity during the April 2008 VA examination. His ankle/bronchial index from May 2008 was noted to be 1.02. However, the change in the index was not material since the prior index was 0.98. Furthermore, the April 2008 examination did not address claudication, the actual basis of the assignment of the 20 percent evaluation. An inadequate examination cannot be the basis of a reduced examination. Compounding the problem in this case is the fact that testing in February 2009 disclosed that the ankle brachial index was 0.93, which was lower than the index that supported the 20 percent evaluation; and when claudication was addressed, it occurred at 1/2 block. This after the fact evidence merely confirms the above determination that improvement was not established. Whether there was error in the initial assignment of the 20 percent evaluation was not addressed by the AOJ and is not before the Board. ORDER Restoration of a 20 percent disability rating for peripheral vascular disease of the left lower extremity is granted. REMAND For the following reasons, the Board finds that the remaining issues on appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist. The Veteran has argued that his peripheral vascular disease in his left lower extremity is worse than currently rated. Specifically, in his August 2009 substantive appeal, the Veteran noted that his left ankle/brachial index was 0.93. Since the Veteran asserts that his peripheral vascular disease has increased in severity since his last examination and that the evidence does not adequately address the current state of his service-connected disability, the Board finds that an additional examination is necessary. See Snuffer v. Gober, 10 Vet.App. 400 (1997) (a veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination). With respect to the claim for service connection, the Veteran has reported that he was diagnosed with peripheral vascular disease of the upper extremities. See a September 2008 statement. While an August 2010 VA treatment note states that the Veteran has been experiencing neck pain that radiates into both of his upper extremities, the Veteran has not been afforded a VA examination to determine whether peripheral vascular disease of the upper extremities is present. Under these circumstances, the Veteran should be afforded a VA examination to determine the nature of his claimed bilateral upper extremity pain and whether any identified disability is related to active duty, or is due to, or aggravated by, his service-connected coronary artery disease. See McLendon v. Nicholson, 20 Vet.App. 79 (2006); Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012). Upon review, the record indicates that the Veteran has not received notice pursuant to the VCAA as it pertains to his increased rating claim. The Veteran has also not been informed of what the evidence must show to establish that his claimed peripheral neuropathy of the bilateral upper extremities is secondary to his service-connected coronary artery disease. This must be accomplished. Additionally, the Veteran has reported that he has been awarded disability benefits from the Social Security Administration. See the November 2005 VA examination (SSA). While the RO conducted a search to determine if any there were any SSA records available for the Veteran, the record indicates that the RO did not enter the Veteran's name correctly in the search parameters. Under these circumstances, an additional attempt must be made to obtain the Veteran's SSA records. VA has a duty to obtain SSA records when they may be relevant to a claim. 38 U.S.C.A. § 5103A(c)(3) (West 2002); Murincsak v. Derwinski, 2 Vet.App. 363, 370-72 (1992). The possibility that SSA records could contain evidence relevant to the Veteran's claim cannot be foreclosed absent a review of those records. Quartuccio v. Principi, 16 Vet.App. 183, 188 (2002). Because the record indicates that the Veteran has been awarded benefits from the SSA, the Board finds that his appeal must be remanded in order to accord the agency of original jurisdiction (AOJ) an opportunity to procure these documents. 38 C.F.R. § 3.159(c)(2) (2012). Finally, the Veteran has been receiving ongoing treatment at the VA Medical Center in Mountain Home, Tennessee. On Remand, the Veteran's treatment records should also be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the issues of an increased rating for peripheral vascular disease of the left lower extremity and service connection for peripheral vascular disease of the bilateral upper extremities are REMANDED for the following action: 1. The RO/AMC must assure that all notice and development required by VCAA has been accomplished, to include providing the Veteran with a VCAA notice letter which informs him of what the evidence must show to establish an increased rating for the peripheral vascular disease of left lower extremity and that the claimed peripheral vascular disease of the bilateral upper extremities was caused or aggravated by his service-connected coronary artery disease. This letter must also inform the Veteran of his, and VA's respective duties for obtaining evidence. 2. The RO/AMC should take all indicated action to contact SSA for the purpose of obtaining copies of all decisions and records that pertain to the Veteran's claim for disability benefits from that agency. Any records so obtained should be associated with the Veteran's VA claims folder. Any notice from SSA that these records are not available should be noted in the Veteran's claims folder. 3. The RO/AMC should conduct a search for any relevant outstanding VA treatment records from the VAMC in Mountain Home, Tennessee, since December 2010. 4. The RO/AMC then should have the Veteran scheduled for a VA examination to determine the current severity of the service-connected peripheral vascular disease of the left lower extremity. The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard. 5. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of the claimed peripheral vascular disease of the upper extremities. The claims folder must be provided to the examiner for review. All necessary testing should be conducted. Following examination and review of the claims folder, the examiner is requested to provide an opinion on the following questions: A) Is at least as likely as not, i.e., a 50 percent probability or greater, that any identified peripheral vascular disease of the bilateral upper extremities is due to an injury or other event of the Veteran's period of active service? B) Is at least as likely as not, i.e., a 50 percent probability or greater, that any current identified peripheral vascular disease of the bilateral upper extremities was caused or aggravated (permanently worsened beyond normal progression) by his service-connected coronary artery disease? Complete rationale should be provided for all opinions expressed. 6. After completing all indicated development, the RO should readjudicate the issues remaining on appeal in light of all the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. The Veteran 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 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. 2012). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs