Citation Nr: 1315515 Decision Date: 05/10/13 Archive Date: 05/15/13 DOCKET NO. 08-07 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to a rating higher than 10 percent for deep vein thrombosis (DVT). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Appellant-Veteran ATTORNEY FOR THE BOARD Dan Brook, Counsel INTRODUCTION The Veteran served on active duty in the military from May 1991 to September 1996. This appeal to the Board of Veterans' Appeals (Board) is from August 2007 and March 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Louisville, Kentucky, and Nashville, Tennessee. As support for his claims, the Veteran testified at a videoconference hearing in January 2010 before the undersigned Veterans Law Judge (VLJ) of the Board. In an April 2010 decision, the Board, in pertinent part, denied the claims for service connection for sleep apnea and for a higher rating for the DVT. The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (CAVC/Court), but only to the extent the Board had denied these specific claims. In a February 2011 Order, granting a Joint Motion, the Court partially vacated the Board's decision to the extent it had denied these claims and remanded them to the Board for further development and readjudication in compliance with directives specified in the Joint Motion. Also in a February 2011 rating decision, the RO granted service connection for pulmonary embolism and assigned an initial 0 percent (noncompensable) rating for this disability retroactively effective from November 20, 2009. The Veteran did not in response appeal either that initial rating or effective date. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (he must separately appeal these "downstream" issues). To comply with February 2011 Court Order concerning the claims still at issue for service connection for sleep apnea and for a higher rating for the DVT, in August 2011 the Board remanded these claims to the RO via the Appeals Management Center (AMC) in Washington, DC. The claim for service connection for sleep apnea requires still further development before being readjudicated on appeal, so the Board is again remanding this claim to the RO via the AMC. Whereas the Board, instead, is going ahead and deciding the claim for a higher rating for the DVT. FINDINGS OF FACT 1. Prior to October 18, 2007, the Veteran's DVT was not manifested by symptomatology more severe than intermittent edema of an extremity or aching and fatigue in the leg after prolonged standing or walking, relieved by elevation of the extremity or compression hosiery; persistent edema, incompletely relieved by elevation of the extremity was not shown. 2. From October 18, 2007 to December 18, 2008, his DVT was not manifested by symptomatology more severe than persistent edema, incompletely relieved by elevation of the extremity; stasis pigmentation or eczema was not shown. 3. Since December 19, 2008, his DVT has not been manifested by symptomatology more severe than intermittent edema of an extremity or aching and fatigue in the leg after prolonged standing or walking, relieved by elevation of the extremity or compression hosiery; persistent edema, incompletely relieved by elevation of the extremity has not been shown. CONCLUSIONS OF LAW 1. Prior to October 18, 2007, the criteria were not met for a rating higher than 10 percent for the DVT. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code 7199-7121 (2012). 2. But from October18, 2007 to December 18, 2008, the criteria were met for a higher 20 percent rating, though no greater rating, for the DVT. Id. 3. Since December 19, 2008, however, the criteria have not been met for a rating higher than 10 percent for the DVT. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and any medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Letters satisfying these notice requirements of 38 C.F.R. § 3.159(b)(1) were sent to the Veteran in February, October, and November 2007, and in January 2008. The letters informed him of the evidence required to substantiate the claims and of his and VA's respective responsibilities in obtaining this supporting evidence. The February and November 2007 and January 2008 letters also complied with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), as well, by discussing the "downstream" disability rating and effective date elements of the claims, that is, to the extent they arose in the context of him trying to establish his underlying entitlement to service connection. Moreover, after providing that additional Dingess notice, the RO readjudicated the claims in the October 2008 supplemental statement of the case (SSOC) - including considering the additional evidence received in response to that additional notice. So the timing defect in the provision of the notice, since it did not all precede the initial adjudication of the claims, since has been rectified ("cured") inasmuch as the intended purpose of the notice still has been served and the Veteran given ample opportunity to participate meaningfully in the adjudication of this claims. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Specifically concerning the claim for a higher rating for the DVT being decided in this decision, it is sufficient to provide generic notice concerning increased-rating claims, not having to also apprise the Veteran of alternative diagnostic codes or daily-life evidence. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), overruling the lower Court's holdings in Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008). The February 2011 Joint Motion instructed the Board regarding the need to obtain the Veteran's relevant and outstanding treatment records from the VA Medical Centers (VAMCs) in Nashville and Murfreesboro, Tennessee. The Joint Motion noted that he had testified to receiving weekly treatment at the Nashville VAMC, including both a vein-stripping procedure in December 2008 and treatment for the development of an embolism in October/November 2009. See January 2010 Board hearing transcript, at 10-11. The Joint Motion observed "[t]he claims file does not contain any VAMRs [VA medical records] post-dating September 2008...and there indeed appear to be multiple missing VAMRs from the claims file." In actuality, however, this did not appear to be the case because VA treatment records from the Nashville VAMC, dated from December 2008 to April 2010, were clearly in the claims file and, indeed, even were prior to the Board's since vacated April 2010 decision, and these records specifically mention and reference the vein-stripping procedure in December 2008. Nevertheless, in order to comply with the Joint Motion, the February 2011 remand specifically instructed the RO/AMC to confirm there were no outstanding VA outpatient treatment records from the Nashville and Murfreesboro VAMCs, including obtaining any more recent VA treatment records. Also, since the appeal has been ongoing for many years, the Board found that another VA compensation examination was needed to reassess the severity of the Veteran's DVT. The Board finds that the RO/AMC complied with these remand instructions by affording the Veteran a VA examination in September 2011 and by obtaining all available outstanding VA records. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error, as a matter of law, in failing to ensure this compliance). But see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (discussing situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives). See, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As for the Veteran's hearing before the Board, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that a VLJ chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked. Bryant, 23 Vet. App. at 488. Here, during the Veteran's January 2010 hearing before the Board, all parties agreed as to the issues on appeal. And specifically in regards to the Veteran's claim for an increase in the rating for his DVT, the parties had a specific discussion on the evidence contained in the record and what pertinent evidence might still be outstanding. Additionally, the Board's subsequent case development on remand included obtaining any additional pertinent VA treatment records and providing the Veteran the September 2011 VA compensation examination reassessing the severity of this disability. There is no indication he has any additional evidence to submit or that VA needs to obtain regarding the severity of this disability, and the status of it has been appropriately assessed by way of the VA examinations to date. Thus, the Board finds that the Board's duties under Bryant have been met. Further, to the extent there were any shortcomings, the Veteran was not prejudiced as there is no indication there is any further outstanding evidence pertinent to his claim. In Shinseki v. Sanders, 129 S. Ct. 1696 (2009), the U. S. Supreme Court made clear that VCAA notice and assistance errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on an individual case-by-case basis. Moreover, as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error but also, above and beyond that, of showing how it is unduly prejudicial - meaning outcome determinative of his claim. There is no such pleading or allegation in this instance. Further regarding the VA examinations, the record is inadequate and the need for a more contemporaneous examination occurs only when the evidence indicates the current rating may be incorrect. 38 C.F.R. § 3.327(a). Here, though, another examination to reevaluate the severity of the DVT is not warranted because there is sufficient evidence already of record, including the relatively recent September 2011 VA examination report, to fairly decide this claim insofar as assessing the severity of this condition. See Caffrey v. Brown, 6 Vet. App. 377 (1994); Olsen v. Principi, 3 Vet. App. 480, 482 (1992); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); and Allday v. Brown, 7 Vet. App. 517, 526 (1995). VA has fulfilled its duty to assist the Veteran by obtaining all relevant evidence in support of this claim that is obtainable, and therefore appellate review of this claim may proceed without prejudicing him. He has received all essential notice and assistance with this claim, has had a meaningful opportunity to participate effectively in the development of this claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004). Therefore, it is difficult to discern what additional guidance VA could have provided him regarding what further evidence he should submit to substantiate this claim. Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."). See also Reyes v. Brown, 7 Vet. App. 113, 116 (1994) and Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any meaningful or useful purpose or result in any significant benefit to the Veteran). In deciding this claim for a higher rating for the DVT, the Board has reviewed all of the evidence in the Veteran's claims file, both his physical claims file and electronic ("Virtual VA") file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by him or obtained on his behalf be discussed in exhaustive detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate this claim and what the evidence in the claims file shows, or fails to show, with respect to this claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). II. Analysis Disability ratings are based on average impairment in earning capacity resulting from a particular disability, and are determined by comparing symptoms shown with criteria in VA's Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged" rating. This practice is employed irrespective of whether it is an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). And for the reasons and bases that will be discussed, the Board is assigning what amounts to is a staged rating by maintaining the existing 10 percent rating initially, but then increasing it to 20 percent, however then returning it back to 10 percent. This rating variance compensates the Veteran for the changes in the severity of this disability. Where there is a question as to which of two evaluations apply, 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. All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, meaning about evenly balanced for and against the claim, with the Veteran prevailing in either event, or whether instead the fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In a September 2006 rating decision, the RO granted service connection for DVT and assigned an initial 10 percent rating retroactively effective from December 29, 2005. In a claim received on August 31, 2007, the Veteran requested an increased rating for this disability. So this is an established rating claim, as opposed to an initial rating claim. Thus, the relevant temporal focus is on the status of this disability since the year immediately preceding the filing of this claim, so since August 31, 2006. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In Harper v. Brown, 10 Vet. App. 125, 126 (1997), the Court discussed the three possible effective dates that may be assigned for a higher rating depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). In another precedent case, Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), the Federal Circuit Court explained that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability. Turning now to the facts of this particular case. A January 2006 VA inpatient discharge summary shows he Veteran was 20 days status post left ankle lateral ligament reconstruction surgery when he presented with left calf pain, shortness of breath, and dyspnea on exertion. The left calf pain was severe and worse with movement. Testing showed DVT and was suggestive of pulmonary emboli. He was started on blood thinning medication and, on discharge, his lightheadedness and shortness of breath were much improved. Subsequent VA treatment records show he continued to be prescribed Coumadin for pulmonary embolus and DVT. A March 2006 VA vascular lab duplex scan showed no DVT of the left leg but that he did have a large hematoma of the left calf. A March 2006 orthotic consultation note shows he resultantly was fitted for a compression stocking. An August 2006 VA primary care physician's note indicates the Veteran had had light left lower extremity swelling since his ankle surgery in December 2005. The pertinent diagnosis was history of DVT and pulmonary embolism after ankle surgery in 2005. An August 2006 VA neurology clinic progress note indicates that, due to intense hematoma pain, he was in a wheelchair so gait examination was deferred. During an August 2006 VA examination, the examiner observed the Veteran had varicose veins with edema in the left leg. The edema was relieved by elevation of the left lower extremity. The examiner diagnosed DVT of the left leg, resolved, and pulmonary embolism, resolved. The examiner commented that the pulmonary embolism and DVT did not have any effect on the Veteran's daily activities. A February 2007 VA pulmonary clinic note indicates that a CT scan had shown no evidence of thromboembolic disease or parenchymal lung disease. A March 12, 2007 VA urgent care note shows the Veteran had presented with a knot in the calf on the left leg but no lower extremity edema. The diagnostic assessment was lower extremity knot in leg. A subsequent vascular lab consult showed no evidence of DVT in the left lower extremity. During a March 2007 VA ankle examination, he was found to have a trace of edema at the ankles bilaterally and marked varicosities. Calf circumferences were equal bilaterally. A March 2007 VA orthopedic note shows a diagnostic impression of clotted off varicose vein. Physical examination showed some varicosities in the left leg and a tender, approximately 1cm x 1cm rounded mass in the left lateral calf. The mass was mobile and minimally tender. It was firm but not hard and there was no redness or swelling. An April 2007 VA orthopedic surgery note shows that, on physical examination, the Veteran had a tender area over the subcutaneous border of the left tibia and one over the lateral side of the left calf. There was a sense of fullness or thickening in this area with many small and large varicosities. He had been wearing a polypropylene foot orthosis, which did not contact the areas, which were tender. An April 2007 VA urgent care progress note indicates he had been seen by urgent care and orthopedics several times recently for left lower extremity pain thought to be related to varicosities. He was found to have left lower extremity varicosities present with pain along the lateral shin and posterior calf. The calf was non-swollen and there was no redness. The diagnosis was painful varicosities of the left lower extremity. A May 2007 vascular surgery lower extremity venous examination showed venous reflux noted in the left greater saphenous vein (GSV). There was no reflux noted in the deep system on the left. A May 2007 VA urgent care progress note shows he was noted to have a history of varicosities in the left lower extremity. He presented with reports of increasing pain and swelling in the distal thigh. He also reported increased size of veins in the anterior low thigh, tender to touch with a mild amount of redness. Objective physical examination showed tender palpable superficial veins in the distal left thigh, minimal redness over the area and warm to touch. The diagnostic assessment was thrombophlebitis. A May 2007 VA vascular surgery clinic note shows he was complaining of tenderness and swelling in the left thigh. He was noted to have superficial thrombophlebitis. His swelling and pain had decreased over the past week. Physical examination showed palpable cord segments in the left medial thigh and left lower extremity with no clear erythema and some varicosities present. During a September 2007 primary care visit, he was found to have no edema or cyanosis of the extremities. An October 18, 2007 VA vascular surgery consultation report shows he mentioned that his lower extremity leg pain as extremely variable. He described cramping and an aching in his legs, which seemed to be worse as the day progressed. He could have this pain at rest or even when his legs were elevated. There seemed to be a component of left ankle pain. He stated that most of his walking was limited due to swelling and pain in his left lower extremity. Physical examination showed palpable venous varicosities in the lower extremities. His left side varicosities were mostly located on the medial aspect of his left knee. He appeared to have some bluish discoloration and 1+ pitting edema to the left lower extremity below the ankle. The examiner noted that it was difficult to compare the Veteran's vague symptomatology and left lower extremity pain to bilateral venous insufficiency. It was recommended that he continue wearing his compression hose. During a January 2008 VA examination, he was noted to have swelling about the left ankle with noted varicosities. He denied any recurrence of the DVT but stated that he had swelling in his left lower extremity on a daily basis. The swelling was relieved somewhat with wearing a compression stocking, but he was unable to wear it regularly. He experienced aching if he sat for a prolonged period of time or if he just stood for a short time. He indicated the edema improved with elevation of his leg. He was then currently taking aspirin. Physical examination revealed varicosities around the ankle but no ulcers, stasis pigmentation or eczema. He had edema at the ankle that was nonpitting and persistent but not board-like. The pertinent diagnosis was DVT, left lower extremity, resolved with residual varicosities. In his April 2008 Notice of Disagreement (NOD), the Veteran alleged he had experienced persistent edema over a long period of time and had continuously reported it to his treating physicians. A May 2008 VA orthopedic surgery note indicates he had been ordered by his vascular surgeon to wear an elastic support to reduce the edema that was present nearly constantly over the dorsum of the foot, but he had not had opportunity to get this device fitted. An August 2008 VA physician's outpatient note indicates the Veteran had a history of bilateral lower extremity DVT in 2005 with pulmonary embolism followed by a six-month course of Coumadin. Since that time he had been told that he had chronic venous insufficiency. He had recently had a venous duplex, which showed a competent deep venous system bilaterally with an incompetent GSV on the left. Physical examination showed persistent lower extremity edema with varicosities in the thighs in the GSV distribution. Stripping of the left GSV to the level of the knee was recommended. A December 18, 2008 brief operative note shows he underwent a left saphenous vein stripping procedure with stab phlebectomy x 9 for painful varicose veins on the left. At the history and physical visit prior to the procedure, the extremities were noted to be free from clubbing, cyanosis or edema. A March 2009 VA primary care progress note shows he had been experiencing pain and tightness in his left lower extremity for the past two weeks. Examination of the extremities showed no pitting edema. At subsequent March 23, 2009 VA surgery telephone contact note shows he called regarding intensifying pain and left leg swelling. It was noted that an ultrasound had not shown any evidence of DVT. He was advised to continue wearing his compression stockings and to elevate his legs. During a March 27, 2009 follow-up telephone contact, he reported that the pain and swelling had disappeared. He also indicated he had not been wearing his compression hose because he was told that he did not need to wear them anymore. It was suggested he wear knee-high compression hose when inactive or when driving for long distances or anytime he experienced an exacerbation of pain or swelling in his leg. An April 2009 VA orthotics lab note shows he was fitted for compression stockings below the knee. He was observed to have slight edema with possible varicose vein, painful to the touch. A November 2009 VA anticoagulation progress note indicates he had restarted warfarin therapy earlier that month due to saddle pulmonary embolus. A December 2009 discharge summary shows he was hospitalized for one day for a new left calf DVT. He had traveled to Alabama and had developed left-sided calf fullness and pain. He presented to the emergency room and was found to have the DVT. It was thought he had not had adequate anticoagulation, so anticoagulants were restarted. During his January 2010 Board hearing, he testified that he continued to have a lot of pain in his left leg. He noted that he had opted for a vein stripping in December 2008. He continued to have thrombosis in the superficial veins, however. He indicated that he had tried compression stockings but that they made the pain worse. Then, around late October to early November 2009, he developed another DVT in his left leg that produced a very large clot in his pulmonary artery going to both the left and right lung known as a saddle clot. He noted that, after testing, it was found that the clotting was due to DVT. Because of this additional clot, he would have to take Coumadin for the rest of his life. He indicated that his left lower extremity edema got to the point that it was not relieved by resting and keeping this leg elevated, which was why he decided to undergo the vein stripping procedure. He also reported that, because of his left lower extremity pain, he had had to use pain medication in order to sleep. He indicated the stripping of the vein procedure had helped his pain while standing. The swelling continued, however, and according to what he had been told by his treating physicians, it would never go away. Additionally, he reported tingling and coolness in his left foot. A February 2010 VA emergency room note shows he presented with lower extremity swelling noticed for the last week. Physical examination showed 1+ edema in the lower extremities with no erythema. A September 2010 VA emergency room note shows he reported two weeks of progressive left leg pain with mild swelling in his calf. Physical examination showed no frank edema and palpable superficial phlebitis on the left flank. He requested crutches and a cane for which he was referred to physical therapy. Physical therapy subsequently ordered these items. An October 2010 rheumatology attending note indicates he was evaluated for pain and discomfort in his left calf. Physical examination did not show any swelling in the left lower extremity. There was mild tenderness on deep palpation of the left calf, more on the posteromedial aspect. An October 2010 ultrasound showed no sonographic evidence of thrombosis in the major lower extremity deep veins. During a January 2011 VA examination, he was diagnosed with a pulmonary embolus. The embolus was found to be at least as likely as not caused by his service-connected DVT. A January 2011 VA pulmonology note includes a finding of trace lower extremity edema. A January 2011 VA pain clinic note shows his left calf was found to be slightly larger than his right. During a September 2011 VA examination, he was noted to have a history of edema in his left lower extremity. He complained of pressure in his calf with prolonged sitting and pain in the calf for 20 minutes or so after sitting or walking. The examiner found the Veteran had thromboangilitis obliterans of the left lower extremity. Left ABI was 1.12. Arterial evaluation of the lower extremities at rest was unremarkable. The examiner diagnosed DVT and noted that exercise or exertion was not precluded by the condition. The examiner also noted that the Veteran reported that the condition affected his daily activities due to pressure in the calf with prolonged sitting, pain in the calf for 20 minutes or so after sitting, aches at night and interference with sleep. VA medical records dated from October 2011 to July 2012 do not include any findings of left lower extremity edema not amenable to relief through elevation of the extremity. The Veteran's service-connected DVT, associated with his service-connected left ankle disability, is currently rated as 10-percent disabling under 38 C.F.R. § 4.104 , Diagnostic Code 7199-7121 (2009). This specific diagnosis is not listed in the Rating Schedule. Therefore, the RO assigned DC 7199 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded first by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20. The RO determined that the most closely analogous diagnostic code is 38 C.F.R. § 4.104, Diagnostic Code 7121, for post-phlebetic syndrome of any etiology. The Board concurs with this finding as the evidence indicates the Veteran's residual chronic disability from his DVT consists of symptoms consistent with the diagnosed post-phlebitic syndrome of the left lower extremity, including pain and edema in the region. The Board has also considered whether he would be entitled to a higher rating under another Diagnostic Code, however, no other applicable diagnostic code would result in a higher rating. See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of Diagnostic Code should be upheld so long as it is supported by explanation and evidence). See also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992) (indicating that any change in DC must be specifically explained). Notably, his pulmonary embolism could be rated under DC 7115 for thrombo-angilitis obliterans (which was diagnosed by the September 2011 examiner); but, as noted above, the rating assigned to the embolism is not on appeal. Also, based on the September 2012 examination findings (i.e., left ankle brachial index of 1.12 and no indication of claudication after walking 100 yards), there would be no basis for a compensable rating under this code. 38 C.F.R. § 4.104. Post-phlebitic syndromes of any etiology are rated under Diagnostic Code (DC) 7121 as follows: A 10 percent rating is warranted where the Veteran experiences intermittent edema of an extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is warranted 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. As a 10 percent rating has already been assigned, the Board's inquiry is limited to whether a higher rating is warranted. Although the Veteran was shown to be having problems with left lower extremity pain and persistent edema as early as August 2006 (one year prior to the date of his claim for increase), the August 2006 VA examiner specifically found that the edema was relieved by elevation of the extremity. Subsequently, over the next 14 months, until October 18, 2007, there is no indication that any persistent edema experienced by the Veteran could not be relieved by such elevation. Instead, a number of the objective findings of record specifically show no presence of left lower extremity edema, including the March 2007 VA urgent care note (no edema), the April 2007 VA urgent care note (calf non-swollen), and the September 2007 VA primary care note (no edema). Also, the April 2007 VA orthopedic surgery note shows only a sense of fullness over the subcutaneous border of the left tibia and over the lateral side of the left calf with many small and large varicosities but does not note any actual edema or swelling, the May 2007 VA urgent care note shows tender palpable superficial veins in the distal left thigh with minimal redness and warm touch without any finding of edema and the May 2007 VA vascular surgery note shows palpable cord segments in the left medial thigh and left lower extremities without any finding of edema. Additionally, although the Veteran was found to have a knot/mass in the left calf in March 2007 and trace edema at the ankles in March 2007, the mass was not shown to be a chronic problem, nor was either problem found not to be amenable to relief through elevation of the extremity. Further, although the Veteran affirmatively reported some difficulty with edema over this 14 month time frame, there is no indication that this edema, inasmuch as it was persistent, could not be relieved through elevation, just as was found by the August 2006 VA examiner. Moreover, the Veteran's own testimony tends to support this conclusion. In his April 2008 notice of disagreement, the Veteran simply reported that he had had persistent left lower extremity edema over a long period but did not allege that the edema could not be relieved by elevation of the extremity. Also, during the January 2010 Board hearing the Veteran specifically reported that over time, his lower extremity edema got to the point where it was not relieved by rest and elevation, which was why he decided to undergo a vein stripping procedure (in December 2008). Thus, given that prior to October 18, 2007, there is a specific finding that left lower extremity edema could be relieved by elevation of the extremity (i.e. from August 2006); no objective findings of left lower extremity edema that could not be relieved in such a manner; and specific testimony by the Veteran tending to support his ability to obtain relief through elevation, the weight of the evidence is against the assignment of a rating in excess of 10 percent under DC 7121 for this time frame. 38 C.F.R. § 4.104; Gilbert, 1 Vet. App. 49, 55 (1990). From October 18, 2007 to December 18, 2008, when the Veteran received the vein stripping procedure, the evidence tends to indicate a more significant level of left lower extremity edema. The October 18, 2007 VA vascular surgery report specifically shows 1+ pitting edema to the left lower extremity below the ankle. Also, during the January 2008 VA examination, the Veteran was found to have edema at the ankle that was nonpitting and persistent but not board-like. Additionally, the May 2008 VA orthopedic surgery note shows that the Veteran had been ordered by his vascular surgeon to wear an elastic support to reduce the edema, which was present nearly constantly over the dorsum of the left foot and an August 2008 VA physician's note also shows persistent lower extremity edema. Then, on December 18, 2008, the Veteran underwent the vein stripping procedure. Although there are no affirmative findings that the edema could not be relieved by elevation (and although edema was not actually found on the history and physical examination just prior to the vein stripping procedure), the objective findings from this time frame do dovetail with the Veteran's own report that he underwent the vein stripping procedure in part to relieve the edema, a report that at least suggests that the less restrictive alternative of elevation had not been effective. Accordingly, resolving reasonable doubt in the Veteran's favor, a 20 percent rating is warranted under DC 7121 from October 18, 2007 to December 18, 2008 based on persistent edema incompletely relieved by elevation of the extremity. 38 C.F.R. §§ 4.104, 4.3. From December 19, 2008, after the Veteran underwent the vein stripping procedure, the evidence does not show persistent left lower extremity edema incompletely relieved by elevation. Instead, the medical evidence more frequently shows the absence of edema. The Veteran was noted to have 1+ edema in the lower extremities in February 2010 and trace edema and slightly larger left calf in January 2011. However, on physical examination in September 2010, there was no frank left lower extremity edema; on physical examination in October 2010, there was not any left lower extremity swelling; and during the September 2011 VA examination no edema was noted. Additionally, even when edema has been shown during this time frame, there has been no indication that it was not amenable to relief by elevation of the extremity. Moreover, although the Veteran testified during the January 2010 hearing that he continued to experience swelling subsequent to the stripping procedure, he did not specifically allege that such edema (unlike that suffered prior to the procedure) was not amenable to relief by elevation of the extremity. Consequently, based on the infrequent objective findings of edema during this time frame and the lack of any finding, or even specific allegation, of persistent edema significant enough not to be completely relieved by elevation, the weight of the evidence is against the assignment of a rating in excess of 10 percent under DC 7121. 38 C.F.R. § 4.104; Gilbert, 1 Vet. App. 49, 55 (1990). The Board notes that the Veteran has also been found to have venous symptomatology in his right lower extremity. However, this symptomatology is not subject to service connection and is not shown to be related to his deep vein thrombosis, which has been found in the left lower extremity. Accordingly, there is no basis for considering it in rating the DVT. Also, as mentioned above, the Veteran did not appeal the noncompensable rating for pulmonary embolism assigned by the February 2011 rating decision so the Board has not considered whether an increased rating could be warranted for this secondary disability. Finally, the Board has considered whether the instant case warrants the assignment of an extraschedular rating for any of the time frames in question. The Court has set out a three-part test, based on the language of the controlling VA regulation, for determining whether a Veteran is entitled to an extra-schedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of his disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extra-schedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, however, the schedular rating criteria contemplate the extent and severity of the Veteran's left lower extremity venous symptoms, which primarily consist of pain and edema. Thus, as the first part of the test is not met, the Board is not obligated to refer this claim to the Under Secretary for Benefits or to the Director of Compensation and Pension (C&P) Service for extra-schedular consideration. Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER Prior to October 18, 2007, a rating higher than 10 percent for the DVT is denied. But from October 18, 2007 to December 18, 2008, a higher 20 percent rating, though no greater rating, is granted for the DVT subject to the statutes and regulations governing the payment of VA compensation. Since December 19, 2008, however, a rating higher than 10 percent for the DVT is denied. REMAND Pursuant to the August 2011 remand, the RO/AMC arranged for a VA examination to determine the likelihood that the Veteran's sleep apnea was caused or aggravated by his service-connected left ankle disability. He was afforded this examination in September 2011, with the examiner concluding the sleep apnea was not caused or permanently aggravated by the Veteran's left ankle condition or any other injury or disease that occurred during his service. The Veteran as mentioned is also service connected for DVT as secondary to surgery for the left ankle disability, however. Additionally, he is service connected for pulmonary embolism as secondary to the DVT. Moreover, during the January 2010 Board hearing, he essentially alleged that his sleep apnea was related to the pulmonary embolism or DVT, indicating he began suffering from snoring/sleep apnea only months after suffering from the embolism. Given that the embolism amounted to a significant, acute pulmonary event; given that the significant pulmonary diagnosis of sleep apnea was made soon after that pulmonary event; and given that the Veteran has affirmatively alleged a connection between the two conditions, the Board's reexamination of the record indicates that a supplemental medical opinion is needed addressing the likelihood that his embolism and/or DVT caused or aggravated his sleep apnea. This additional medical comment is needed prior to final adjudication of this claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Consequently, on remand, the September 2011 VA examiner should provide this supplemental opinion. Accordingly, this claim is again REMANDED for the following additional development and consideration: 1. Return the claims file to the VA examiner that evaluated the Veteran for sleep apnea in September 2011. If, for whatever reason, this examiner is no longer available or able to provide a supplemental opinion, then obtain additional comment from someone else equally qualified. In this eventuality, it may be necessary to have the Veteran reexamined, but this is left to the designee's discretion as to whether another examination is needed or, instead, this requested additional medical comment can be provided just with review of the claims file. If the new examiner believes another examination is necessary, schedule another VA examination. The examiner is asked to determine the likelihood (very likely, as likely as not, or unlikely) the Veteran's sleep apnea is caused and/or aggravated by his service-connected pulmonary embolism and/or DVT. To facilitate making this important determination, the claims file, including a complete copy of this REMAND, must be made available to and reviewed by the examiner for the pertinent medical and other history. It is also essential the examiner discuss the medical rationale for his/her opinion, whether favorable or unfavorable, if necessary citing to specific evidence in the file supporting conclusions and/or pertinent research findings. 2. Ensure the VA examiner's opinion is fully responsive to the directives of this remand. If it is not, then take corrective action. 38 C.F.R. § 4.2 (2012). 3. Then readjudicate this claim for service connection for sleep apnea in light of this and all other additional evidence. If this claim continues to be denied, provide the Veteran and his representative another SSOC and give them time to submit additional evidence and/or argument in response to it before returning the file to the Board for further appellate consideration of this remaining claim. The appellant has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs